University of Florida Levin College of Law
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1-1-2003
The Environmental Commerce Clause
Christine A. Klein
University of Florida Levin College of Law, [email protected]
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Part of the Constitutional Law Commons, and the Environmental Law Commons
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Christine A. Klein, The Environmental Commerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003), available at http://scholarship.law.ufl.edu/
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THE ENVIRONMENTAL COMMERCE CLAUSE
ChristineA. Klein*
I. INTRODUCTION
In 1995, the United States Supreme Court shocked the legal community when it constrained the scope of the affirmative commerce power of
Congress for the first time in sixty years. In United States v. Lopez,' the
Court held that Congress exceeded its constitutional commerce authority
when it enacted a statute to regulate the possession of guns near schools.
The Court later increased this constitutional uncertainty by issuing two
additional decisions that set forth a narrow view of the federal commerce
authority.2 Together, these cases require that when Congress seeks to
regulate wholly intrastate activities on the basis that they substantially
affect interstate commerce, the activities themselves must be economic
or commercial in nature.' A flurry of scholarly commentary followed,
pondering the import of the Court's decisions upon the previous conventional wisdom that the federal commerce authority was virtually without
limits.4 A subset of this scholarship discussed the potential impact of the
decisions upon the specific area of federal environmental law, teasing out
various strands of dicta suggesting that the regulation of land, water, and
other natural resources is not within the authority of the federal government.5 Implicit in this commentary is the fear that federal environmental
*Professor of Law, Michigan State University (DCL College of Law); LL.M., Columbia University; J.D., University of Colorado; B.A., Middlebury College. I am grateful to
my colleagues Susan Bitensky, Craig R. Callen, and Kevin Saunders for their thoughtful
comments and to David Meninga for his research assistance. Special thanks to Mark W.
Ely, the most patient and insightful listener imaginable.
1514 U.S. 549 (1995).
2 United States v. Morrison, 529 U.S. 598 (2000); Solid Waste Agency of N. Cook
County v. U.S. Army Corps of Eng'rs ("SWANCC"), 531 U.S. 159 (2001).
3 See Morrison, 529 U.S. at 611 ("[I]n those cases where we have sustained federal
regulation of intrastate activity based upon the activity's substantial effects on interstate
commerce, the activity in question has been some sort of economic endeavor"). Lopez, 514
U.S. at 560, 566-67 (stating that "[w]here economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained" but conceding that "a
determination whether an intrastate activity is commercial or noncommercial may in some
cases result in legal uncertainty").
4 See, e.g., GERALD GUNTHER, CONSTITUTIONAL LAW 93 (12th ed. 1991) (articulating
the conventional wisdom pre-Lopez that "[a]fter nearly 200 years of government under the
Constitution, there are very few judicially enforced checks on the [federal] commerce
power"); see also Alan T. Dickey, United States v. Lopez: The Supreme Court Reasserts the
Commerce Clause as a Limit on the Powers of Congress, 70 TUL. L. REV. 1207 (1996);
John P. Frantz, The Reemergence of the Commerce Clause as a Limit on Federal Power:
United States v. Lopez, 19 HARV. J.L. & PUB. POL'Y 161 (1995); Donald H. Regan, How to
Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez,
94 MICH. L. REV. 554 (1995).
5 See, e.g., Bradford C. Mank, Protecting Intrastate Threatened Species: Does the En-
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law may be particularly vulnerable to the Court's shrinking view of
commerce clause authority because environmental protection frequently
requires the regulation of intrastate, noneconomic activities.6
Before Lopez the Court had begun to expand a related line of constitutional doctrine concerning the negative or dormant aspect of the
commerce clause. Under this doctrine, although the commerce clause is
"phrased as a grant of regulatory power to Congress, the Clause has long
been understood to have a 'negative' aspect that denies the States the
power unjustifiably to discriminate against or burden the interstate flow
of articles of commerce." '7 This judicially created dormant commerce
clause prevents states from engaging in economic protectionism, even
when Congress has not acted.8 A separate stream of scholarly commentary followed this expansion of the dormant commerce clause,9 with
some observers noting the particular vulnerability of state laws impacting
natural resources.' 0 In some instances, states may seek to protect the
dangeredSpecies Act Encroachon TraditionalState Authority and Exceed the Outer Limits
of the Commerce Clause?, 36 GA. L. REV. 723, 770-80 (2002); William Funk, The Court,
the Clean Water Act, and the Constitution:SWANCC and Beyond, 31 Envtl. L. Rep. (Envtl. L.
Inst.) 10,741 (2001); John H. Turner, Lopez Lives: Can an Expansive View of Federal
Wetlands Regulation Survive? An Overview of Decisions Regarding the 'Proactive' Reach
of the Commerce Clause, in WETLANDS LAW AND REGULATION, (ALI-ABA Course of
Study, May 31, 2000), WL SE88 ALI-ABA 197, 199-201.
6 See, e.g., Morrison, 529 U.S. at 657 (Breyer, J., dissenting) (asking "why should we
give critical constitutional importance to the economic, or noneconomic, nature of an interstate-commerce-affecting cause? If chemical emanations through indirect environmental
change cause identical, severe commercial harm outside a State, why should it matter
whether local factories or home fireplaces release them?").
7
Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 98 (1994).
8
See, e.g., H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525 (1949):
This principle that our economic unit is the Nation, which alone has the gamut of
powers necessary to control the economy, including the vital power of erecting
customs barriers against foreign competition, has as its corollary that the states
are not separable economic units. As the Court has said in Baldwin v. Seelig, 294
U.S. 511, 527, "what is ultimate is the principle that one state in its dealings with
another may not place itself in a situation of economic isolation." In so speaking
it but followed the principle that the state may not use its admitted power to protect the health and safety of its people as a basis for suppressing competition.
Id. at 537-38.
9
See, e.g., Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 YALE
L.J. 425 (1982); Michael A. Lawrence, Toward a More Coherent Dormant Commerce
Clause: A Proposed Unitary Framework, 21 HARV. J.L. & PUB. POL'Y 395, 414-15 (1998);
Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569; Donald H. Regan, The Supreme Court
and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L.
REV. 1091 (1986).
10See, e.g., Jonathan H. Adler, Waste and the Dormant Commerce Clause-A Reply, 3
GREEN BAG 2D 353 (2000); Richard A. Epstein, Waste and the Dormant Commerce
Clause, 3 GREEN BAG 2D 29, 33-37 (1999); Frank P. Grad, RCRA, The Business of Waste
Disposal and the Dormant Commerce Clause, Now Wide Awake, in ENVIRONMENTAL LAW
(ALI-ABA Course of Study, Feb. 11, 1998), WL SC56 ALI-ABA 627, 629-30; Kirsten
Engel, Reconsidering the NationalMarket in Solid Waste: Trade-Offs in Equity, Efficiency,
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The Environmental Commerce Clause
health and safety of their residents by excluding harmful items such as
solid waste or normative fish parasites, and retaining within their borders
important resources such as water and indigenous fish species." Such
state efforts may have economic consequences for the free market and
economic benefits for the regulating state, thus treading perilously close
to the Court's expanding 12view of economic protectionism forbidden under the commerce clause.
Although there is a substantial body of commerce clause literature, few
authors focus upon the relationship between the affirmative and dormant
commerce clauses other than to note that the latter has been judicially implied from the former. 3 This Article represents both an expansion and a
contraction of the existing literature. It enlarges the scope of current analysis
by considering the relationship between the affirmative and dormant aspects
of the commerce clause. 4 In so doing, this Article attempts to avoid the
practice of dividing the Court's commerce clause jurisprudence into two
distinct bodies of law. 5 Simultaneously, this Article narrows the commerce clause inquiry to a discrete subset of the Court's decisions, those
Environmental Protection,and State Autonomy, 73 N.C. L. REv. 1481, 1495-1500 (1995).
" See infra Part H.B.
12Justices Scalia and Thomas have accused the Court of adopting an overly expansive
rationale for the dormant commerce clause, one that would hold unconstitutional any state
law that disrupts the national market:
The purpose of the negative Commerce Clause, we have often said, is to create a
national market. It does not follow from that, however, and we have never held,
that every state law which obstructs a national market violates the Commerce
Clause. Yet that is what the Court says today. It seems to have canvassed the entire corpus of negative-Commerce-Clause opinions, culled out every free-market
snippet of reasoning, and melded them into the sweeping principle that the Constitution is violated by any state law or regulation that "artificially encourag[es]
in-state production even when the same goods could be produced at lower cost in
other States."
W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 207 (1994) (Scalia, J., dissenting, joined
by Thomas, J.). Despite this criticism, Justices Scalia and Thomas found unconstitutional
under the dormant commerce clause every state law at issue in the cases considered by this
Article.
3 But see Barry Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. CHI. L. REV. 1089, 1089 (2000) (attempting a "reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by
identifying ways in which that jurisprudence was structurally related to and accordingly
deeply influenced by the categories of substantive due process and dormant Commerce
Clause doctrine"); Andrew I. Gavil, Reconstructing the JurisdictionalFoundationof Antitrust Federalism, 61 GEo. WASH. L. REv. 657, 660 (1993) (considering the historical relationship between the affirmative and dormant commerce clauses in the context of "antitrust
federalism").
14See infra Part IHI.D.
'" See Cushman, supra note 13, at 1149 (arguing that the "doctrinal decontextualization involved in the conventional strategy of studying a line of doctrine [such as the
affirmative commerce clause or the dormant commerce clause] from its earliest expression
through its most recent is thus fundamentally misguided" and "too easily blinds us to the
dynamics of interdoctrinal connections").
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involving the regulation of natural resources. To accomplish these tasks,
this Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. 16 These decisions comprise what I will
call the environmental commerce clause-the Court's interpretation of
the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting
the scope of the affirmative commerce clause while simultaneously ex-
panding the reach of the dormant commerce clause. 7 As a result, both
federal and state efforts to protect the natural environment have been
rendered constitutionally suspect.
This study supports two principal conclusions. First, the modern
Court has been consistently hostile to environmental regulation. In the
context of the commerce clause, for the past quarter century the Court
has rarely upheld a natural resource law, whether promulgated by Congress or by the states. s This Article considers cases in which the Court
invalidated the governmental regulation under scrutiny in ten out of
eleven instances. 9 Observing this trend, Chief Justice Rehnquist and
Justice Blackmun accused some of their colleagues of engineering a return to laissez faire government.20
As a second principal conclusion, this study has uncovered a subtle
inconsistency between the Court's affirmative and dormant commerce
clause analyses. In particular, when the federal government has sought to
regulate the use of water and land under the affirmative commerce clause,
the Court has emphasized the natural, noncommercial nature of the pro16 To mark the starting point of the "modern" Supreme Court, I selected the year 1978.
That was the year when Justice Rehnquist (prior to his 1986 elevation to the position of
chief justice) participated in his first dormant commerce clause case relating to the topic of
natural resources. See City of Philadelphia v. New Jersey, 437 U.S. 617 (1978). To provide
for a cleaner analysis, cases involving taxation were generally omitted, even if the tax was
levied upon a natural resource. See, e.g., Regan, supra note 9, at 1101 (noting "special
feature of tax cases that makes it necessary to split them off as a category" in dormant
commerce clause analysis). The results of each of the eleven environmental commerce
clause decisions, as well as the vote of each Justice in each case, are set forth in tabular
form in the Appendix.
" See infra Part III.B (discussing shrinkage of affirmative commerce clause); Part III.C
(discussing expansion of dormant commerce clause).
18This hostility extends beyond the purview of the commerce clause. For recent limitations upon federal environmental regulation, see ROBERT MELTZ, CONG. RESEARCH
SERV., CRS REPORT 30670, CONSTITUTIONAL CONSTRAINTS ON CONGRESS' ABILITY TO
PROTECT THE ENVIRONMENT (2000), http://www.cnie.org/NLE/CRSreports/Risk/rsk51.cfm (noting that "[in the past decade ... the Supreme Court has invigorated several
[constitutional] strictures in ways that present new challenges to congressional drafters of
environmental statutes" and reviewing recent Supreme Court environmental opinions involving the affirmative commerce clause, standing to sue in the federal courts, the Takings
Clause of the Fifth Amendment, the Tenth Amendment, and the Eleventh Amendment).
19See infra Part III.
"0 See W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 217 (1994) (Rehnquist, C.J.,
dissenting, joined by Blackmun, J.). See infra note 259 and accompanying text.
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tected resources rather than the commercial nature of the regulated activity. 21 In the absence of commercial or economic activity, therefore, the
federal government lacks commerce clause regulatory authority under the
rationale of Lopez.2 2 Simultaneously, when the states have attempted to
regulate the use of land, water, or fish, the Court has treated such things
as market commodities rather than natural resources.23 As a result, the
Court has invalidated those state regulations under the dormant commerce clause as constituting an undue interference with commodities in
24
the flow of interstate commerce.
Thus, the Court has bolstered its environmental hostility through an
elusive rhetorical device-shifting back and forth between the metaphor
of environment-as-natural-resource (thus precluding federal regulations
protecting noncommercial objects such as land, water, and wildlife that
fall within the traditional realm of the states' police power)25 and envi-
ronment-as-commodity (thus precluding state regulations that might interfere with interstate commerce). As a practical result of this inconsistent approach, the Court effectively treats the environment as neither
commodity nor natural resource, thus frustrating both federal and state
efforts to protect the natural environment.
Part II roots the constitutional controversy in a practical context,
serving at the outset as a reminder of the significant, pragmatic consequences of the Court's environmental commerce clause decisions. In
particular, this Part focuses upon federal and state efforts to protect two
essential resources: land and water. As states struggle to preserve their
1 See, e.g., SWANCC, 531 U.S. 159 (2001). In SWANCC, the Court characterized the
federal regulation of wetland filling as involving the regulation of wildlife habitat, rather
than the landfill industry, and observed that permitting "federal jurisdiction over ponds and
mudflats ... would result in a significant impingement of the States' traditional and primary power over land and water use." Id. at 161, 173-74. But see id. at 191 (Stevens J.,
dissenting) (distinguishing between state land use planning, which "in essence chooses
particular uses for the land," and federal environmental regulation, which "at its core, does
not mandate particular uses of the land but requires only that ... damage to the environment is kept within prescribed limits," and asserting that "[c]ontrary to the Court's suggestion, the [federal regulation] does not 'encroac[h]' upon 'traditional state power' over land
use"). The SWANCC decision is discussed in Part III.B.3.
22 See supra note 3 and accompanying text.
23See, e.g., C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 391 (1994) (invalidating
under dormant commerce clause, state regulation of interstate shipments of solid waste to
municipal landfills and commenting that "the article of commerce is not so much the solid
waste itself, but rather the service of processing and disposing of it"); Fort Gratiot Sanitary
Landfill, Inc. v. Mich. Dep't of Natural Res., 504 U.S. 353, 359 (1992) (holding that solid
waste is an article of commerce, even if it has no value); Sporhase v. Nebraska, 458 U.S.
941, 954 (1982) (invalidating under dormant commerce clause, Nebraska statute regulating
use of groundwater and holding that groundwater is an article of commerce).
24 See, e.g., C & A Carbone, 511 U.S. at 406 (O'Connor, J., concurring) (supporting
invalidation of state regulation on the basis that "if [other local governments] impose the
type of restriction on the movement of waste that Clarkstown has adopted, the free movement of solid waste in the stream of commerce will be severely impaired").
1 See SWANCC, 531 U.S. at 173 (citing land and water use as subjects within the traditional and primary power of the states).
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dwindling inventory of uncontaminated commercial land against a
growing volume of garbage and solid waste, states have sought to export
their waste to neighboring jurisdictions, shipping more than fifteen million tons of solid waste across state lines for disposal.2 6 A state's defensive measures intending to keep other states' garbage out of their jurisdictions have raised difficult constitutional questions concerning the distinction between legitimate health and safety regulations and impermissible interferences with interstate commerce. State efforts to protect water
resources and prevent export to neighboring jurisdictions pose similar
constitutional issues. The dual nature of land and water as both natural
resources and market commodities exacerbates the legal ambiguity surrounding regulation.
Part III initially considers whether Lopez and its progeny signal a
willingness of the Court to limit the ability of Congress to protect natural
resources. If the sphere of federal commerce authority over land and water is indeed shrinking, then this might have a corresponding impact upon
the scope of state regulatory authority. That is, as federal commerce
authority contracts, one might expect that there would be fewer situations
where courts should invalidate state laws for blundering into forbidden
federal territory. In fact, the opposite result has occurred, with the Court
increasingly striking down state environmental laws. This Part argues
that the modern Court has failed to settle upon a consistent environmental understanding, leading to the constitutional invalidation of natural
resource regulations promulgated by federal and state governments alike.
Part IV examines the voting record of each justice in isolation, revealing three distinct voting blocs. The first two blocs represent both
sides in the traditional federalism debate among those who strive to
maintain a careful balance of power between federal and state governments. Chief Justice Rehnquist has been the primary proponent of the
first view, voting consistently to uphold state environmental regulation
but to invalidate federal regulation.27 The second voting bloc includes
Justices Stevens, Ginsburg, Souter, and Breyer, who generally support
federal environmental regulation, but strike down state regulation.28 This
Article characterizes the third voting bloc as "the newest federalists,"
those who are staunch advocates of the free market, exhibiting a laissez
faire philosophy toward government intervention at both levels. This
group includes Justices Scalia, Thomas, and Kennedy (often along with
26 See Robert R. M. Verchick, The Commerce Clause, Environmental Justice, and the
Interstate Garbage Wars, 70 S. CAL. L. REV. 1239, 1247 n.33 (1997).
27 Although Chief Justice Rehnquist has been described as a "new federalist" his ap-
proach nevertheless may be described as "traditional" when compared to what I will call
"the newest federalists." See generally infra Part IV.B.
28 Justices
Stevens and Ginsburg consistently follow this pattern. Justice Souter has
followed this pattern in six out of seven cases. Justice Breyer has voted consistently in
favor of federal regulation, but joined the Court after the decisions in the dormant commerce challenges to state regulation considered in this Article. See infra Part IV.A.
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Justice O'Connor), who have voted consistently against environmental
protection by both the federal and state governments.29 The consistently
negative results of the environmental commerce clause cases may be
rooted in the two separate notions of federalism held by some justices,
coupled with the laissez faire philosophy of other justices. Part IV concludes that despite the fact that the Court as a whole has been hostile to
environmental regulation, this may be an overly facile characterization
that masks the subtle dynamics that influence the nine individual votes of
the Court.
II.
RESOURCE PROTECTION: FROM GARBAGE TO THE GREAT LAKES
Before examining the jurisprudential framework of the commerce
clause, it will be useful to consider the underlying practical problems that
the constitutional doctrine must address. This Part will provide a brief
overview of two of the most fundamental natural resources: land and
water. Notably, many of the Court's modern dormant commerce cases
have addressed state attempts to protect these two resources. Moreover,
in its only recent affirmative case dealing with natural resources, the
Court considered federal efforts to protect wetlands, a unique type of
landscape at the interface between land and water.30
The current judicial interest in land and water may be simply the
product of chance. As the Court has suggested on at least one occasion,
however, the number of such lawsuits that find their way to the Supreme
Court may be indicative of another phenomenon: the increasing scarcity
of these resources and the corresponding boldness with which state and
federal governments have reacted to impending shortages.31 This Part will
discuss the factual context from which the environmental commerce
clause disputes arise.
29Justice O'Connor generally votes in conformity with this bloc. She consistently
voted against federal regulation in the affirmative commerce clause cases considered by
this Article, and voted against state regulation in four out of the six dormant commerce
decisions in which she participated. See Appendix.
30See SWANCC, 531 U.S. at 159.
3 As Justice Kennedy observed in 1994:
As solid waste output continues apace and landfill capacity becomes more costly
and scarce, state and local governments are expending significant resources to develop trash control systems that are efficient, lawful, and protective of the environment. The difficulty of their task is evident from the number of recent cases
that we have heard involving waste transfer and treatment [citing to four previous
Supreme Court decisions rendered within the preceding 16 years].
C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 385-86 (1994).
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A. Garbage:Keeping It Out
1. Garbage as an Article of Commerce
Garbage disposal presents a serious problem. In 1960, the United
States generated 88.1 million tons of municipal solid waste, representing
the disposal of 2.7 pounds of garbage per person per day.3 2 By the late
1980s, the popular press predicted that the disposal of waste in the
United States was "approaching the crisis stage," triggered in large
measure by the "affluent, fast-paced, throwaway American culture. ' 33 In
1999, the nation produced over 230 million tons of waste, or approxi34
mately 4.6 pounds of garbage per person per day.
The disposal of garbage is big business. During the 1980s, the
United States buried about eighty percent of its waste in sanitary landfills.35 In order to transport and process this waste, cities pay contractors
up to one hundred dollars per ton in "tipping fees. '3 6 Nationwide, municipalities spend up to $5 billion annually for garbage disposal,37 shipping approximately twenty-eight million tons of waste annually across
state lines.3 8 Perhaps influenced by the profitable nature of this interstate
business, the Supreme Court has held that garbage is an article of commerce. 39 Later, the Court refined that view, explaining that "[i]n other
32U.S. Environmental Protection Agency, Municipal Solid Waste: Basic Facts, at
http://www.epa.gov/epaoswer/non-hw/muncpl/facts.htm (last modified Oct. 29, 2002) (on
file with the Harvard Environmental Law Review) (reporting that "U.S. residents, businesses, and institutions produced nearly 232 million tons of [municipal solid waste]" in
2000).
33George J. Church, Garbage, Garbage, Everywhere: Landfills Are Overflowing, but
Alternatives Are Few, TIME, Sept. 5, 1988, at 81 (observing that Americans disposed of
approximately twice as much waste per capita than did the residents of West Germany or
Japan).
14 See supra note 32.
11Church, supra note 33.
36 Id.
37Id.
31Press Release, Congressman John D. Dingell, Dingell to Introduce Legislation to
Halt the Flow of Unwanted Garbage into Michigan's Landfills (Mar. 26, 2001) (reporting
interstate shipments of 28.4 million tons of waste annually) (on file with the Harvard Environmental Law Review). In 1998, the Congressional Research Service reported that states
imported 25.1 million tons of waste annually from other states. JAMES E. MCCARTHY,
CONG. RESEARCH SERV., CRS REPORT 98-689, INTERSTATE SHIPPING OF MUNICIPAL SOLID
WASTE: 1998 UPDATE (1998), http://www.cnie.org/NLE/CRSreports/Waste/waste-7a.cfm
(citing shipping statistics, but cautioning, "One of the weaknesses of the available data is
that total imports reported by the states do not match total exports. When one totals reported exports, the current survey shows a national total of 21.9 million tons, about 12%
less than reported imports. Reported exports increased 4.2 million tons, or 24%, compared
to 1995.").
39City of Philadelphia v. New Jersey, 437 U.S. 617, 622-23 (1978) (rejecting argument that "the mere transportation and disposal of valueless waste between states" does
not constitute commerce, and holding that "States are not free from constitutional scrutiny
when they restrict that movement [of out-of-state wastes]").
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words, the article of commerce is not so much the solid waste itself, but
rather the service of processing and disposing of it."40
2. Garbage as a Negative Natural Resource
The growth in garbage generation has brought about a corresponding
decrease in available landfill space. During the 1980s, approximately half
of the nation's landfills reached capacity and closed.4 The Environmental
Protection Agency ("EPA") reported that, as of 1999, the District of Columbia had less than five years of landfill capacity remaining, and that an
42
additional nine states had less than ten years of remaining capacity.
These events have triggered controversial garbage disputes in which urban or densely populated areas have sought to ship their wastes to lesspopulated locations, often in other states. 43 One such conflict involves
New York City's efforts to ship its wastes by barge and truck to Virginia.
These shipments generate $550 million annually and provide some five
thousand jobs in Virginia. 44 Despite these market benefits, the governor
of Virginia informed the mayor of New York City that his state would no
longer serve as New York's "dumping ground."4 In an ensuing lawsuit,
however, the Fourth Circuit invalidated portions of Virginia's solid waste
management statutes under the dormant commerce clause.'
In another highly publicized dispute, the State of Michigan chastised
other states and Canada for depositing annually over one million tons of
waste into Michigan landfills. 47 Perhaps mindful of Virginia's unsuccess40 C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 391 (1994).
41Church, supra note 33, at 81.
42U.S. Environmental Protection Agency, Municipal Solid Waste: Years of Remaining
Landfill Capacity, at http://www.epa.gov/garbagellongdesc/4-91ongdesc.htm (last modified
Oct. 29, 2002) (on file with the Harvard Environmental Law Review) (specifying five to
ten years of remaining capacity for Alabama, Minnesota, Mississippi, Missouri, North
Carolina, Rhode Island, Tennessee, Vermont, and Wisconsin).
41See generally Verchick, supra note 26.
44
New York v. Virginia: Dumping Grounds, ECONOMIST, Feb. 20, 1999, at 27: see also
CONG. RESEARCH SERV., supra note 38 (reporting New York's export of 3.77 million tons
of municipal solid waste in 1997, the most in the country, and observing that "waste exports from New York are expected to grow rapidly because of the planned closure of New
York City's Fresh Kills Landfill [sic]-the city's only landfill-in 2001"). According to
1997 data, Virginia is the nation's second largest importer of municipal solid waste. Id. tbl.
3 (citing
1997 imports of municipal solid waste into Virginia at 2.8 million tons).
45
New York v. Virginia: Dumping Grounds, supra note 44.
46Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316 (4th Cir. 2001) (holding unconstitutional under the dormant commerce clause, portions of Virginia solid waste management laws purporting to regulate transportation and shipments of municipal solid waste
for disposal in Virginia landfills), cert. denied sub nom. Murphy v. Waste Mgmt. Holdings,
Inc., 47122 S. Ct. 1203 (2002).
Tim Martin, Trash in the Great Lakes State, LANSING ST. J., Sept. 9, 2001, at Al
(showing the 2000 Michigan disposal of 1.3 million tons of solid waste from Canada).
Congressman Mike Rogers (R-Mich.), one of the sponsors of such federal legislation,
stated, "[The Canadians] can send all the hockey players they want. But they should keep
their dirty diapers and Canadian bacon scraps at home." Id.
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ful defense in the lawsuit arising out of its objection to garbage imports
from New York, Michigan has refrained from banning the importation of
out-of-state waste, even though approximately seventeen percent of the
waste deposited in its landfills originates in Canada and other jurisdictions.4 8 Rather, Michigan has entreated Congress to pass federal legislation explicitly authorizing
states and local communities to prevent the
49
import of foreign waste.
These garbage conflicts have been brought to the attention of the
Supreme Court. A minority of the justices has opposed the notion that
garbage is a commodity beyond the scope of state regulation. 0 Expressing this opposition, Chief Justice Rehnquist has articulated a concise correlation between the garbage business and land use: "Landfill space
evaporates as solid waste accumulates."'" When considering the problem
of landfills, Chief Justice Rehnquist's dissents have emphasized the land
consumed rather than the commodity that comprises the fill material. 2
Accordingly, he has been sympathetic toward state regulation of garbage
shipments, opining that "states may take actions legitimately directed at
the preservation of the State's natural resources, even if those actions
incidentally work to disadvantage some out-of-state waste generators."53
Chief Justice Rehnquist has chastised the majority on the basis that it
"stubbornly refuses to acknowledge that a clean and healthy environment, unthreatened by the improper disposal of solid waste, is the commodity really at issue in cases such as these."54
Id.
49Press Release, Congressman David E. Bonior (D-Mich.), Congressman David E.
48
Bonior (D-Mich.) Seeks Movement on Legislation Allowing Local Communities to Regulate Out-of-State Trash (Apr. 6, 2000) (on file with the Harvard Environmental Law Review).
50
See, e.g., Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 112 (1994)
(Rehnquist, C.J., dissenting, joined by Blackmun, J.) ("While I understand that solid waste
is an51article of commerce ... it is not a commodity sold in the marketplace.").
1 d. at 108.
2 See,
e.g., Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 349 (1992) (Rehnquist,
C.J., dissenting); see also Or Waste Sys., 511 U.S. at 113 (Rehnquist, C.J., dissenting)
(viewing landfill space as a natural resource).
53 Chem. Waste Mgmt., Inc., 504 U.S. at 349. In other instances, Chief Justice Rehnquist has referred to a clean environment as a natural resource, rather than a commodity;
see, e.g., Or Waste Sys., 511 U.S. at 113 (Rehnquist, C.J., dissenting) ("Congress has recognized taxes as an effective method of discouraging consumption of natural resources
.... Nothing should change the analysis when the natural resource-landfill space-was
created or regulated by the State in the first place.").
54 Or Waste Sys., 511 U.S. at 110 (Rehnquist, C.J., dissenting); see also Fort Gratiot
Sanitary Landfill, Inc., v. Mich. Dep't of Natural Res., 504 U.S. 353, 369 n.1 (1992)
(Rehnquist, C.J., dissenting) ("I am baffled by the Court's suggestion that this case might
be characterized as one in which garbage is being bought and sold.").
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The Environmental Commerce Clause
B. Water: Keeping It In
At least as early as 1966, United States officials expressed concern
over the adequacy of this nation's water supply." Internationally, the
United Nations has predicted that by the year 2025, more than 2.7 billion
people will face severe water shortages, and that 5 billion people will be
unable to satisfy all of their water needs.16 This "looming crisis ... overshadows nearly two-thirds of the Earth's population. 5 7 Just as communities have struggled to keep their neighbors' garbage out of their jurisdictions in the face of diminishing land resources, so also have they fought
to keep scarce water resources within their borders.
This Section will emphasize the historic dual vision of water, both as
a highly mobile market commodity and as a permanent fixture of the
natural landscape in which the identity of surrounding communities is
firmly rooted. Part II.B.1 explores the water-as-commodity philosophy, a
view the Supreme Court has espoused. In its 1982 decision Sporhase v.
Nebraska, the Court invalidated a provision of Nebraska law that restricted the out-of-state transport of groundwater withdrawn from any
well in Nebraska.18 In reaching its conclusion, the Court explicitly held
that water is an article of commerce. 9 This holding provides a basis for
limiting far-reaching state water statutes in order to preserve the federal
prerogative to regulate interstate commerce. 6° Sporhase has been of particular concern in the arid western United States, where most states follow the prior appropriation doctrine, a water-law regime rooted in the
vision of water as a marketable commodity.6' Although these states may
favor the marketability of water within their state boundaries, Sporhase's
water-as-commodity philosophy may hamper these states' ability to limit
the export of their water resources to other states.
"See, e.g., JIM WRIGHT, THE COMING WATER FAMINE (1966). Former Congressman
Wright stated:
The crisis of our diminishing water resources is just as severe (if less obviously
immediate) as any wartime crisis we have ever faced. Our survival is just as much
at stake as it was at the time of Pearl Harbor, or the Argonne, or Gettysburg, or
Saratoga.
Id., quoted in Andrew Guy, A "Small" Withdrawal? PerrierPlan Raises Critical Questions
About Fresh Water Supply (Apr. 23, 2001), at http://www.mlui.org/projects/enviropolicy/
guyperrierarticle.html.
56 UN Warns of Water Shortage by 2025: Looming Crisis to Affect Two-Thirds of World
Population, TORONTO STAR, Mar. 22, 2002, http://www.thestar.com1NASApp/csl
conten... intFriendly&c=Article&cid=101679749925) (on file with the Harvard Environmental Law Review).
57Id.
58 458 U.S. 941 (1982).
19Id. at 954.
60Id. ("[G]round water overdraft is a national problem and Congress has the power to
deal with it on that scale").
6' See infra notes 79-84 and accompanying text.
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Part II.B.2 considers the competing vision of water as a natural resource, a view incorporated into the prevalent riparian water law doctrine
in the eastern states. In contrast to the market view of water as a mobile
commodity, this water-as-resource philosophy endorses keeping water
within its geographic basin of origin for uses such as domestic consumption, environmental protection, aesthetic enjoyment, and recreation.62
Some federal laws also follow the water-as-resource view. Despite the
suggestion in Sporhase that water overuse is a national problem subject
to federal regulation, subsequent statements indicate that the Court also
may be willing to limit the federal regulation of water resources.63
Finally, Part II.B.3 presents the Great Lakes as a case study of a current controversy involving a region's efforts to prevent the interstate export of its water resources. This study illustrates the need for the Supreme Court to provide a clear signal as to whether the federal government, state governments, or both provides the proper constitutional channel through which water resources may be protected.
1. Water as a Market Commodity
Humans have exhibited an extraordinary unwillingness to take their
water where they find it. Rather than accept the natural geographic distribution of water as a barrier to settlement and development, we have engaged in wondrous engineering feats designed to redistribute the earth's
natural water supply. The term "reclamation" has been applied with equal
aplomb to the irrigation of arid landscapes 64 and to the draining of wetlands. 65 The apparent unifying idea is of reclaiming the earth from itself,
bringing water to the desert and removing it from swamps. Some even
claim that the effort to move water around the planet has been so successful that the resultant weight redistribution has changed the tilt of the
earth on its axis and varied the speed of its rotation.'
Both governmental agencies and private entrepreneurs have developed creative schemes for moving water around the landscape from regions of surplus to regions of scarcity. An impressive number of these
plans have come to fruition. Under the authority of the Reclamation Act
62
See generally WATER
RIGHTS OF THE EASTERN UNITED STATES
(Kenneth R. Wright
ed., 1998) (observing that although "inconsistencies abound," traditional riparian water law
incorporated a "watershed limitation, which is the doctrine that the riparian owner has the
right to use the water only within the same watershed").
63 See infra Part III.C.2.
64 See Reclamation Act of 1902, ch. 1093, Pub. L. No. 57-161, 32 Stat. 388 (codified
as amended in scattered sections beginning 43 U.S.C. § 371). See generally Christine A.
Klein, On Dams and Democracy, 78 OR. L. REV. 641, 672-79 (1999) (providing brief
overview
of the history of the Bureau of Reclamation).
65
See generally ANN VILEISIS, DISCOVERING THE UNKNOWN LANDSCAPE: A HISTORY
OF AMERICA'S WETLANDS (1997).
66See PATRICK MCCULLY, SILENCED RIVERS: THE ECOLOGY AND POLITICS OF LARGE
DAMS 7 (1996).
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of 1902,67 for example, the federal Bureau of Reclamation has brought
water for irrigation to 9.1 million acres of arid land, constructing 345
diversion dams, 322 storage reservoirs, 14,490 miles of canals, 34,990
miles of laterals, 930 miles of pipeline, 218 miles of tunnels, and 15,530
miles of drains. 68 Other water users have engineered complex transmountain diversions, piping water from one side of a mountain to the
other. In perhaps the most notorious of these water transfers, the city of
Los Angeles pumped a yearly average of 99,580 acre-feet of water over
the Antelope-Mojave Plateau from the Owens Valley.69 The resultant water conflict-made infamous by Roman Polanski's movie Chinatowninvolved the irate Owens Valley residents' attempt to sabotage Los Angeles' diversions with dynamite and violence.70
Other schemes have proved to be unrealistic or remain in the planning stages. In 2000, an agricultural and water development company
captured national headlines with its proposal to pump over six hundred
billion gallons of "pristine, fossil-age groundwater" from beneath the
Mojave desert to supply the growing needs of the cities of Southern California.7' More recently, an Alaskan entrepreneur developed a proposal to
transport annually over six billion gallons of water from rivers in Northern California to supply more than forty thousand households in San Diego. 72 The water would be pumped into huge floating bags three football
fields in length, which would be pulled by barges hundreds of miles
south through the Pacific Ocean to San Diego. 73 The failed Enron Corporation proposed perhaps the most grandiose of such water marketing
schemes. 74 In 1998, the corporation launched a water unit called the Azurix Corporation, intending to dominate the global water market through a
U.S.C. § 371 (1994).
61DONALD WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY, AND THE GROWTH OF THE
6743
WEST
AMERICAN
69
277 (1985).
See Nat'l Audubon Soc'y v. Superior Court, 658 P.2d 709, 713-14 (Cal. 1983). An
acre-foot equals 325,851 gallons and is defined as "the volume of water required to cover 1
acre of land to a depth of 1 foot." U.S. Geological Survey, Water Science Glossary of
Terms, at http://ga.water.usgs.gov/edu/dictionary.htnil (last modified July 1, 2001) (on file
with the Harvard Environmental Law Review).
70For
an account of the Owens Valley water conflict, see
MARK REISNER, CADILLAC
(1993).
71See Thirsty Mojave Knee-Deep in Water Controversy, CNN, Oct. 30, 2000, at http://
www.cnn.com/2000/NATUREIl0I30/mojave.desert.enn/index.html (on file with the Harvard Environmental Law Review).
72
See Michelle Locke, Plan to Bag River Water for Sale Alarms Northern CaliforPITTSBURGH POST-GAZETTE, Mar. 11, 2002, 2002 WL 3801154.
nians,
73
See Daniel B. Wood, Latest Plan to Ease Water Woes: Big Baggies, CHRISTIAN SCI.
MONITOR, Mar. 12, 2002, at 1. This entrepreneur heads an international consortium that is
attempting to implement a similar proposal in the Mediterranean Sea. Id; see also Eric
Bailey, Plan to Bag Rivers May Not Float: An Entrepreneur'sBid to Tug Giant Sacks of
Fresh North Coast Water to San Diego Stirs Up Anger Amid the Skepticism, L.A. TIMES,
Mar. 2, 2002, at Al.
14 See Brad Foss, Deep Roots of Enron Fall Studied, AP ONLINE, Feb. 3, 2002, 2002
WL 11687183.
DESERT: THE AMERICAN WEST AND ITS DISAPPEARING WATER
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variety of mechanisms, including the development of a short-lived online
water-trading market called "Water2Water.com. ''75 In the past, such
schemes might have been dismissed as absurd. Today, however, with the
confluence of technological development and the prospect of immediate
shortage, 76 water export proposals are taken seriously by both supporters
and opponents.17 Reflecting this concern, Fortune Magazine predicted in
2000 that "[w]ater promises to be to the 21st century what oil was to the
20th century: the precious commodity that determines the wealth of nations .78
Many states have adopted the water-as-commodity philosophy as
well. In the western United States, for example, the doctrine of prior appropriation awards water rights to the first users of water, without regard
for the ownership of land adjacent to the water source. 79 The doctrine
explicitly contemplates the movement of water from one area to another,
awarding the "usufructuary" right to withdraw a specific quantity of water from a particular source for a defined use.80 Often absent is any requirement that the water be used on the same tract of land, or even in the
same drainage basin, from which it was extracted." Rather, the legal
right to utilize water in a particular location is conditioned primarily on
the demonstration that the contemplated use will not injure the water
15
See Michael Grunwald, Enron Unit Lobbied Bush to Privatize Florida Water, S.
Feb. 9, 2002, at 15A, available at 2002 WL 2946103 (discussing
FLA. SUN-SENTINEL,
$400 billion global water industry); see also Foss, supra note 74 (describing plans for
online water market as an "untenable" venture that failed to consider the "complexity of
laws surrounding the transport of water and the lack of infrastructure to move this heavy
liquid from one region to another").
76 San Diego, which imports some ninety percent of its water supply, anticipates water
shortages by the year 2004. See Wood, supra note 73; Morning Edition: Plans to Capture
Water From Rivers in Northern California and Shipping It South Causing Protests, (NPR
broadcast, Mar. 8, 2002), 2002 WL 3187381. The World Water Council has estimated that
over 1 billion people currently lack safe drinking water, and has predicted that by 2025 that
number will increase to 3.1 billion people. Billions Will Lack Safe Water by 2025, International Panel Says, GLOBE & MAIL, Mar. 7, 2002, at A5. In the United States, a former chief
of the U.S. Forest Service stated that two-thirds of the world's population will experience
water shortages within the next twenty years, including regions of the United States. Ted
Snyder, Short Supply, (Earthwatch Radio broadcast, Jan. 31, 2002), http://www.ewradio.org/
program.asp?ProgramlD-3136 (on file with the Harvard Environmental Law Review).
71See Billions Will Lake Safe Water by 2025, supra note 76. See generally Bailey, supra note 73 (describing evolving response toward California proposal from early dismissal
as "harebrained, goofy, ridiculous, ludicrous, absurd" to growing concern over an idea
regarded as "potentially ... very, very dangerous").
718Shawn Tully, Water Water Everywhere, FORTUNE, May 15, 2000, at 342, 344.
79David H. Getches, The Metamorphosis of Western Water Policy: Have Federal Laws
and Local Decisions Eclipsed the States'Role?, 20 STAN. ENVTL. L.J. 3 (2001); Charles F.
Wilkinson, In Memoriam, PriorAppropriation 1848-1991, 21 ENVTL. L. (1991).
10David H. Getches, Changing the River's Course: Western Water Policy Reform, 26
ENVTL.
L. 157, 161-63 (1996).
81But see David Howard Davis, Water Diversion from the Great Lakes, 1999 TOL. J.
GREAT LAKES' L. SCI. & POL'Y 109, 113 (1999) (describing eastern water law basin of
origin doctrine as generally confining water use to lands adjacent to the natural water
source or to lands within the same hydrologic water basin).
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The Environmental Commerce Clause
rights of users with a senior priority.12 Indeed, the western water system
is an outgrowth of the customs followed in nineteenth-century California
mining camps, where it was essential for miners to pipe water long distances from scarce rivers to the site of mining operations.83 Today, western water rights are routinely bought and sold within a particular state as
a species of property right, independent of the sale of any particular parcel of land, and often commanding impressive prices in the marketplace."
2. Water as a Natural Resource
Despite the increasingly common view of water as a market commodity, many disagree vehemently, seeing water as the cornerstone of a
community's sense of identity and place.85 Perhaps ahead of his time,
Henry David Thoreau protested the idea of diverting Walden Pond water
from its natural setting to the taps of village homes:
My Muse may be excused if she is silent henceforth ....
Now
...the dark surrounding woods, are gone, and the villagers....
instead of going to the pond to bathe or drink, are thinking to
bring its water, which should be as sacred as the Ganges at least,
82See Janet C. Neuman & Keith Hirokawa, How Good Is an Old Water Right? The
Application of Statutory Forfeiture Provisionsto Pre-Code Water Rights, 4 U. DENV. WATER L. REv. 1 (2000).
83See Irwin v. Phillips, 5 Cal. 140 (1855). The California Supreme Court stated:
[T]he most important are the rights of miners to be protected in the possession of
their selected localities, and the rights of those who, by prior appropriation, have
taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines, to supply the necessities of
gold diggers, and without which the most important interests of the mineral region would remain without development.
Id. at 146.
84See, e.g., David W. Yoskowitz, Markets, Mechanisms, Institutions, and the Future of
Water, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,237 (2001); Olen Paul Matthews et al., Marketing Western Water: Can a Process Based GeographicInformation System Improve Reallocation Decisions?, 41 NAT. RESOURCES J. 329 (2001); Andrew P. Morriss, Lessons
From the Development of Western Water Law for Emerging Water Markets: Common Law
vs. Central Planning, 80 OR. L. REV. 861 (2001).
8
1 See,
e.g., INT'L JOINT COMM'N, PROTECTION OF THE WATERS OF THE GREAT LAKES,
FINAL REPORT TO THE GOVERNMENTS OF CANADA AND THE UNITED STATES 6, Feb. 22,
2000 [hereinafter IJC REPORT] (asserting that "[t]he waters of the Great Lakes Basin are a
critical part of the natural and cultural heritage of the region" and observing that "these
freshwater seas have made a vital contribution to the historical settlement, economic prosperity, culture, and quality of life and to the diverse ecosystems of the Basin and surrounding region").
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to the village in a pipe, to wash their dishes with!-to earn their
6
Walden by the turning of a cock or drawing of a plug!
The two competing visions of water-as-commodity and water-as-naturalresource are not mutually exclusive-after all, even Thoreau appears to
tolerate some practical uses of his "sacred" Walden Pond. The categorization of water as a resource or as a commodity may turn upon such variables as how much water remains at the original source and the extent to
which water is utilized in a manner that maintains some essential rela87
tionship to the source from which it was withdrawn.
The common law of the eastern states, espousing the riparian doctrine of water law, has long recognized the natural resource aspect of
water. In fact, under the traditional doctrine, only those who own land
adjacent to a water source possess the legal right to make use of that water. 8 Originally, even use by such riparian landowners was severely restricted. Under the English natural flow doctrine, riparian landowners
could make use of adjacent waters for limited purposes, such as the operation of mill wheels, but they could not alter the rate of flow, the quantity, or the quality of the stream. 9 Later, riparian law settled upon the
more tolerant "reasonable use doctrine," under which each riparian owner
shares an equal right to put the water to a beneficial use without unreasonably injuring other riparian users.' Despite this doctrinal relaxation,
the riparian law of most states retains some sort of "basin of origin"
limitation-preferring, or even demanding, that water remains in the
geographic basin of its natural source.91
Even western states following the prior appropriation doctrine acknowledge some aspects of the water-as-resource philosophy. 92 For example, some western states have recognized legal water rights to keep
water within a specified stream or lake, thus precluding water uses that
draw natural water levels beneath a specified floor.93 These "instream
s1HENRY D. THOREAU, WALDEN 187-88 (Houghton Mifflin, 1995) (1854) (bemoaning
scheme to pipe Walden Pond water to nearby village).
87 For example, the withdrawal of water from a stream to irrigate adjacent farmland
might be compatible with the natural resource philosophy, despite the fact that the resultant
product (crop) might be sold as a market commodity.
88 See generally A. DAN TARLOCK ET AL., WATER RESOURCE MANAGEMENT 111-14
(5th ed. 2002).
'9See, e.g., Boyd v. Greene County, 644 S.W.2d 615, 616 (1983).
90See Robert E. Beck, Use Preferencesfor Water, 76 N.D. L. REV. 753 (2000).
91See WATER RIGHTS OF THE EASTERN UNITED STATES, supra note 62, at 25.
92As a dissenting view, Chief Justice Rehnquist would argue that "a State may so
regulate a natural resource as to preclude that resource from attaining the status of an 'article of commerce' for the purposes of the negative impact of the Commerce Clause." See
Sporhase v. Nebraska, 458 U.S. 941, 963 (1982) (Rehnquist, J., dissenting).
93See generally Christine A. Klein, The ConstitutionalMythology of Western Water
Law, 14 VA. ENVTL. L.J. 343, 359-69 (1995).
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The Environmental Commerce Clause
flow" laws are premised
generally upon noneconomic, environmentally
94
protective rationales.
To the extent that the law has protected the natural resource values
of water, states have assumed the dominant role in providing such protection. However, an overlay of federal law contributes to this effort.
Notably, these federal laws are typically something other than pure "water law" allocation schemes, impacting water rights in a tangential, but
significant, manner. As early as 1908, the Supreme Court recognized the
"federal reserved water rights" doctrine.95 Under this concept, when the
federal government makes a reservation of land, it implicitly reserves
water rights necessary to accomplish the purpose for which it made the
reservation. 96 As a result, the declared federal need to keep water in place
to preserve natural resources has trumped state-sanctioned commodity
uses of water. In Cappaert v. United States, for example, the Court curtailed the use of state-authorized water rights for irrigation when necessary to preserve water levels in a desert pond in Nevada's Devil's Hole
National Monument for the survival of the endangered desert pupfish.97
Congress, as well as the federal judiciary, has assisted states in protecting their natural water resources, albeit in an indirect manner. For
example, section 404 of the Clean Water Act forbids the "discharge of
dredged or fill material ...
[into] navigable waters" without a permit.98
This section has been applied primarily to prohibit the filling of wetlands.9 9 The statutory touchstone for the issuance of section 404 permits
utilizes the rhetoric of natural resource protection: the permitting agency
must consider whether the proposed discharge "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and
fishery areas (including spawning and breeding areas), wildlife, or recreational areas."'" The statute's general declaration of goals echoes this
emphasis upon water-as-natural-resource, stating that the legislation's
objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."''
The federal Endangered Species Act'02 ("ESA") also provides some
protection to water resources in their natural condition. Among other
things, the ESA requires federal agencies to insure that their actions are
"not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse
94Id. at 359.
91See Winters v. United States, 207 U.S. 564 (1908).
96Cappaert v. United States, 426 U.S. 128, 138 (1975).
97Id.
98 33 U.S.C. § 1344(a) (2000).
99See generally SWANCC, 531 U.S. 161, 163-64 (2001) (discussing application of
section 404 to wetlands and other "waters of the United States").
0 33 U.S.C. § 1344(c).
01
Id. § 1251(a).
1- 16 U.S.C. § 1531 (2000).
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...."Io As applied, this
modification of [critical] habitat of such species
provision has stopped federal plans that would have facilitated out-ofstream water uses, such as the construction of dams and reservoirs.1° An
additional provision of the ESA applies to both federal and nonfederal
actors, making it unlawful for "any person" to "take" any endangered
species of fish or wildlife 05 as through actions that "harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect" endangered species."°
The Supreme Court has approved a broad definition of the term "take"
that may serve to protect water resources in their natural condition." 7 For
example, drought has caused low water levels in the Klamath River in
California and Oregon, creating concern over the coho salmon and endangered suckerfish that depend on the river for survival. Pursuant to the
ESA, federal officials were urged to restrict water diversions that support
Klamath Basin farmers in favor of the endangered fish that would be
harmed if too much water were diverted from the river.108
3. Case Study: Great Lakes Dreaming
The Great Lakes are on the newest front of the "water wars." Historically a region of surplus, the Great Lakes states have perceived recently that their water supply is threatened by a combination of climate
change, pollution, diversion, direct removal of lake water by tanker, and
well-pumping from tributary aquifers as a source of bottled drinking
water. °9 The realization of the impending threat has come slowly. As one
commentator observed, "A lot of people just can't believe that we may be
running out of water, living this close to the Great Lakes."" 0 Overall the
case study of the Great Lakes provides anecdotal evidence of two important points. First, in some places, a threatened shortage may prompt
16 U.S.C. § 1536(a)(2) (2000).
See Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (enjoining completion of Tellico Dam to avoid adverse modification of critical habitat of endangered snail darter).
However, the project was ultimately allowed to go forward as a result of post-litigation
political maneuvers. See Klein, supra note 64, at 682-89.
10516 U.S.C. § 1538(a)(1)(B) and (C).
106Id. § 1532(19) (defining the term "take").
101See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995)
(upholding as reasonable broad agency definition of "harm" that includes "significant
habitat modification or degradation where it actually kills or injures wildlife").
108See generally Eric Bailey, The State Administration May Cut Klamath's Flow
Again, L.A. TIMES, Oct. 11, 2002, at BlO (noting that after a "massive die-off" of salmon
the Bush administration was accused of diverting too much water for farmers); Deborah
Schoch, Klamath Plan Will Hurt Fish, State Official Says, L.A. TIMES, Mar. 29, 2002, at
B7 (reporting that Interior Secretary Gail Norton and Agriculture Secretary Ann Veneman
would preside over a ceremony on March 29, 2002 to open irrigation headgates).
109Timothy Egan, Near Vast Bodies of Water The Land Still Thirsts, N.Y. TIMES, Aug.
12, 2001, at Al.
10Id. at 20 (quoting water engineer employed by the Northeastern Illinois Planning
Commission).
103
114
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communities to seek protection at both the federal and state levels of
government. This effort, however, may be foreclosed by the Supreme
Court's current inclination toward expanding the dormant commerce
clause and contracting the affirmative commerce clause. Second, such
shortages underscore the value of water as a natural resource, leading
affected communities to align their personal identities with the protection
of their resources in a natural condition.
Less than three percent of the earth's water sources consist of fresh
water."' The Great Lakes Basin contains an impressive one-fifth of that
useable water supply." 2 As world water resources dwindle, thirsty regions have periodically cast a greedy eye upon the seemingly inexhaustible waters of the Great Lakes, going back as far as the 1800s." 3 The
scope of these schemes to capture the lakes' water challenges the imagination. Engineers of the 1950s dreamed of using atomic bombs to dig
giant canals that would transport water from the Great Lakes to the Great
Plains." 4 In the 1980s, planners proposed to send Great Lakes water to
Texas, New Mexico, Oklahoma, Kansas, Colorado, and Nebraska to recharge the Ogallala aquifer of the high plains." 5 Other proposals called
for the piping of Lake Superior water to Montana for the transport of coal
6
slurry."t
The federal government acted to alleviate the fears of the Great
Lakes states that their resources would be depleted." 7 In 1968, Congress
approved the Great Lakes Basin Compact, an agreement among the eight
lake states providing for joint and cooperative action to "promote the orderly, integrated, and comprehensive development, use, and conservation
of the water resources of the Great Lakes Basin."" 8 In 1986, Congress
enacted the Water Resources Development Act, prohibiting the diversion
of water within the United States from the Great Lakes or their tributaries
for use outside the basin, unless the governors of all the Great Lakes
states approved the diversion."'
" UN Warns of Water Shortage by 2025, supra note 56 (citing Mar. 22, 2002 report of
the United Nations).
112 See IJC REPORT, supra note 85.
3
1 1d.
14
15
See Davis, supra note 81, at 109.
See Chris A. Shafer, Great Lakes Diversions Revisited: Legal Constraintsand Op-
portunities for State Regulation, 17 T. M. COOLEY L. REV. 461, 463 (2000).
" Id. See IJC REPORT, supra note 85, app. 6 (summarizing past diversion and removal
6
proposals). See generally DONALD A.
WILHITE, CENTER FOR AGRICULTURAL METEOROLOGY AND CLIMATOLOGY, UNIVERSITY OF NEBRASKA (LINCOLN), THE OGALLALA AQUIFER
(1989), http://www.meteor.iastate.edu/gcp/issues/society/ogallala/ogallala.html
the Harvard Environmental Law Review).
"7
US
(on file with
See IJC REPORT,supra note 85.
See id. at 36.
19
42 U.S.C. § 1962d-20(d) (2000) ("[N]o water shall be diverted from any portion of
the Great Lakes within the United States, or from any tributary within the United States of
any of the Great Lakes, for use outside the Great Lakes basin unless such diversion is approved by the Governor of each of the Great Lake States").
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Despite these federal legislative responses, Great Lakes water
schemes continued to develop. In 1998, the Canadian Nova Group proposed to ship almost 160 million gallons of Lake Superior water annually
by supertanker to Asia. 2 ° Although the province of Ontario initially issued a permit for the proposed project, the permit was later withdrawn
following a firestorm of public criticism. 12' Three years later, the Perrier
water company sought permission to withdraw up to 262 million gallons
of groundwater annually from Michigan wells for sale as bottled drinking
water.' Unlike Nova Group, Perrier was successful in its bid for state
1 23
approval.
State lawmakers and citizens responded with concern and outrage to
the approval of Perrier's plan. In perhaps the most colorful response, a
Michigan state senator established a citizen group that sponsored billboards along interstate highways within the state. 24 Featuring a map of
Michigan surrounded by huge caricatures of a Texas cowboy, a Utah
skier, a California surfer, and a New Mexico man wearing a large sombrero-all guzzling Great Lakes water through giant straws-the bill-
board proclaims, "Back Off Suckers."'2 5 The senator's response was
prompted, in part, by his fear that proposals such as the Perrier plan
would establish a precedent allowing states in the southwest to utilize the
Great Lakes
as a cost-effective method of solving their freshwater short26
ages. 1
At least two aspects of the criticism of the approval of Perrier's
groundwater withdrawals are noteworthy. First, opponents have called for
both federal and state assistance. 27 Michigan's attorney general issued an
120See IJC REPORT, supra note 85, at 44.
12 See James M. Olson, Great Lakes Water, 80 MICH. B.J. 32, 34 (2001).
22 Andy Guy, Great Lakes Supernova: State EnvironmentalAgency Decision Nearsfor
Perrier (July 19, 2001), at http://www.mlui.org/projects/enviropolicy/guysupernova.asp
(on file with the Harvard Environmental Law Review).
123See State Issues Permits for Perrier Wells, DETROIT FREE PRESS, Aug. 15, 2001,
http://www.freep.com/news/mich/outl6_20010816.htm (on file with the Harvard Environmental Law Review).
124Michael Critzon, Billboards Suport [sic] Great Lakes Protection, CENT. MICH.
LIFE,
Oct.
24,
2001,
http://www.cm-life.comlusnews/display.v/ART/2001/10/24/
3bd646fee7050?in_archive= 1 (on file with the Harvard Environmental Law Review) (describing actions of Michigan State Senator Ken Sikkema). Senator Sikkema served as
Chairman of the Natural Resources and Environmental Affairs Committee and ViceChairman of the Technology and Energy Committee. See Senator Ken Sikkema: About the
Senator, at http://www.senate.state.mi.us/gop/senator/sikkema/bio.html (last visited Nov.
23, 2002) (on file with the Harvard Environmental Law Review).
125Critzon, supra note 124.
26
1 Id.
127A nonprofit organization, Citizens for Michigan's Future, for example, asserts on its
Web site that "[it is widely recognized ... that new laws are necessary at both the state
and federal levels to adequately protect the Great Lakes from new diversion proposals that
are certain to emerge in the future." Citizens for Michigan's Future, Great Lakes Water
Diversion, at http://www.protectthegreatlakes.com/diversion.htm (last visited Mar. 19,
2002) (on file with the Harvard Environmental Law Review).
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The Environmental Commerce Clause
opinion that Perrier's groundwater withdrawals fell within the ambit of
the federal Water Resources Development Act and were not permissible
unless approved by the governors of the Great Lakes states. 28 However,
the Michigan attorney general observed that the federal statute relies
primarily upon the Great Lakes governors for its implementation, and
therefore called upon state lawmakers to adopt a state water use statute to
1 29
protect such resources from depletion.
Others have expressed similar concerns that complete reliance upon
the federal government to protect the region's waters may be undesirable
or inadequate. President George W. Bush-perhaps unwittingly-exacerbated the region's distrust of federal protection when he stated cryptically, "Water will forever be an issue in the U.S., particularly the western
part. I look forward to discussing this with [the Canadian Prime Minister]." 130 Supporters of state resource protection observe that political
power in the Great Lakes region and Midwestern states has been eroding
gradually in favor of the growing population of the southwest. 3 ' Mindful
of this concern, a bipartisan coalition of Michigan state senators developed sixty-six recommendations for state laws to protect the Great Lakes
32
and the groundwater that replenishes them.1
128Letter from Attorney General Jennifer Granholm to Governor John Engler (Sept.
17, 2001), http://www.ag.state.mi.us/press-release/pr10256.htm (on file with the Harvard
Environmental Law Review).
29 Letter from Attorney General Jennifer Granholm to State Senator Christopher D.
Dingell et al. (Sept. 13, 2001), http://www.ag.state.mi.us/press-release/pr10256.htm (on
file with the Harvard Environmental Law Review). The Attorney General observed that:
[Tihere is no guarantee that the governors of the Great Lakes states will subject
the [Perrier] proposal to a substantive review, or that this will satisfactorily address the foreseeable increase in similar proposals .... Thus, reliance on the
WRDA as the only means by which the State of Michigan can act to protect and
conserve the water resources of our Great Lakes is simply unacceptable. If the
governors are not able to achieve a consensus regarding the interpretation of the
federal statute, it is difficult to foresee effective enforcement of its requirements
in any but the most blatant cases.
ld.
30See National Battle Looms Over Great Lakes Resource, THE CABIN, Dec. 16, 2001,
http://www.thecabin.net/stories/121601/mon-1216010016.shtml (on file with the Harvard
Environmental Law Review) (discussing subsequent headline, "George W. Bush Is at the
Door and He Wants Canada's Water," appearing in a major Canadian newspaper); see also
Michigan Environmental Council, Message for the President: Great Lakes Are Not For
Sale (July 18, 2001), at 207.126.116.12/culture/native-news/m13323.html (on file with the
Harvard Environmental Law Review).
' Andrew Guy, A
"Small" Withdrawal? Perrier Plan Raises Critical Questions
About Fresh Water Supply (Apr. 23, 2001), at http://www.mlui.org/projects/enviropolicy/
guyperrierarticle.html. Guy observed that "political power is ebbing in the Great Lakes,
falling away from Midwest states and towards the gradually drier, and increasingly thirsty
southwest. Every Great Lakes state, with the exception of Minnesota, lost congressional
representation with the 2000 census. At the same time, Arizona, California, Nevada, Colorado, and Texas all gained representation." Id.
132
Andrew Guy, As a Thirsty World Watches, Michigan Considers New Water Security
Law (Apr. 23, 2002), at http://www.mlui.org/landwater/fullarticle.asp?fileid= 15167 (on file
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Second, the Perrier controversy revealed concern expressed by Great
Lakes citizens that their water be preserved as an undisturbed natural
resource.' 33 This concern was lost on politicians. For example, Great
Lakes protection was an important centerpiece of Michigan's 2002 gubernatorial contest. The statements of Democratic candidate Jennifer
Granholm were representative:
The next Michigan leadership must embrace the principles of
stewardship and sustainability. We must manage and care for
our natural resources by recognizing our responsibility to future
generations. The next Michigan Governor must establish and
advance a conservation and3 4environmental ethos that protects
and celebrates our heritage.
Similarly, Republican candidates for governor emphasized the need for a
"Marshall Plan" to protect the Great Lakes and for other measures to
promote the security of those waters.' 35 Beyond idealism, pragmatic observers fear that the water-as-commodity view may trigger international
obligations that preclude environmental protection. 3 6 Conversely, water
in its natural state may not be subject to free trade agreements, making it
with the Harvard Environmental Law Review); see also Editorial, Precious Waters: State
Senators Commit to Strong Protection; Voters Must Hold Them to Their Promises, DETROIT
FREE PRESS, Jan. 22, 2002, http://www.freep.com/voices/EDITORIALS/ewater22-20020122.
htm (noting philosophical transformation of State Senator Sikkema, "who recoiled in horror at
the idea of water-use laws a couple of years ago, [but who] became convinced of their necessity after hearing about residential wells that have run dry in at least three places after major
water users set up shop nearby or increased their capacity").
133See, e.g., Editorial, Michiganders'Love of the Lakes Should Come As No Surprise,
DETROIT
FREE
PRESS,
Jan. 22, 2002, http://www.freep.com/voices/EDITORIALS/
ewside22-20020122.htm (criticizing state lawmakers for failing to anticipate "how much
Michiganders love their lakes" and the vehemence with which they would defend the
lakes).
'1 Andrew Guy, Granholm's Great Lakes Initiative, GREAT LAKES BULL., Feb. 27,
2002, http://www.mlui.orglprojects/enviropolicy/printlinitiativeprint.asp (on file with the
Harvard Environmental Law Review). Attorney General Granholm succeeded in her bid for
election as governor of Michigan. See Edward Walsh, Democrats Gain, But Both Sides
Claim Success, WASH. POST, Nov. 7, 2002, at A41.
"I Guy, supra note 134 (noting that "candidates in both parties have made the environment a top campaign issue" and "water security-the promise of a robust, clean, fresh
supply of aqua for drinking, farming, fishing, manufacturing, and playing-is emerging as
the most prominent environmental issue").
136 Guy, supra note 131. The author stated:
According to the International Joint Commission, when water is "captured" and
entered into commerce, it may attract obligations under international agreements.
Undoubtedly, Perrier's operation, and others like it, would shift a certain degree
of decision-making away from the sovereign state of Michigan and toward the
global markets .... [However,] water in its natural state (e.g., in a lake, river, or
aquifer) is not included within the scope of any of these trade agreements.
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The Environmental Commerce Clause
easier to protect under federal and state environmental laws. 137 In the
Great Lakes region and elsewhere, water disputes will trigger litigation
requiring judges to decide the extent to which the affirmative and dormant commerce clauses permit federal and state regulation of increasingly scarce resources.
III.
THE COMMERCE CLAUSE: Two FACES
Part II discussed the dual nature of actions such as water use and
garbage disposal, involving both natural resources and market commodities. This Part contemplates how those two frameworks have been translated into constitutional law: if the Court views water and garbage as
objects of commerce, then Lopez suggests that federal regulation of such
objects falls within the affirmative commerce clause.13 1 Conversely, if the
Court views water and landfill sites as natural resources, then it should be
more willing to permit state regulation in the name of public health,
safety, and welfare, despite the strictures of the dormant commerce
clause. Neither of these characterizations has proved entirely sufficient to
explain the Court's commerce clause jurisprudence. Instead, the Court
has been inconsistent in its understanding, simultaneously limiting both
federal and state regulation of natural resources.
A. History of the Court's Commerce Clause Interpretation
1. Early Interpretation:Gibbons v. Ogden
For its first century, the commerce clause served primarily as a limit
upon state legislation that threatened to interfere with interstate commerce, rather than as a basis for federal legislation. 3 9 In fact, the first
authoritative Supreme Court commerce clause case, Gibbons v. Ogden,
went beyond the clause's affirmative grant of authority to the federal
government, pondering the implications for state regulatory authority.'1 °
In Gibbons, Chief Justice John Marshall invalidated a New York statute
that purported to regulate the licensing of steamboats in the waters of
New York. Applying a rationale more relevant to the supremacy clause
than the commerce clause, the Chief Justice observed that the New York
statute was in direct conflict with a federal statute regulating the same
activities.'4 1 Justice Marshall envisioned a federal commerce power that
was both vast and exclusive, explaining that the federal commerce power
"is complete in itself, may be exercised to its utmost extent, and acId.
137
13 See supra notes 1-3 and accompanying text.
Lopez, 514 U.S. at 553-54; see also id. at 568-69 (Kennedy, J., concurring).
'39
140
Gibbons v. Ogden, 22 U.S. 1 (1824).
Id.
141
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knowledges no limitations, other than are prescribed in the constitution."' 4 2 The Chief Justice's vision of the commerce power permitted a
whittling down of the role of the states in regulating subjects that touch
upon interstate commerce.
It was not until the rapid development of industry at the end of the
nineteenth century that Congress actively utilized the expansive commerce power, enacting legislation such as the Interstate Commerce Act of
188711 and the Sherman Act of 1890.'" In response, the courts were
faced with the difficult task of determining the outer limits of that federal
power. As later acknowledged by several members of the Rehnquist
Court, the resulting affirmative commerce clause jurisprudence lacked "a
coherent or consistent course of interpretation," in part because "neither
the course of technological advance nor the foundational principles for
the jurisprudence itself were self-evident to the courts. 145
2. Formalismand the Scope of the Commerce Clause
The Court fashioned a morass of tests designed to determine the parameters of the commerce power, experimenting with a variety of formalistic approaches. Under one such test, the Court attempted to distinguish between "manufacturing" (appropriate for state regulation) and
"commerce" (appropriate for federal regulation). In the 1888 decision
Kidd v. Pearson, for example, the Court upheld, against a dormant commerce clause challenge, an Iowa statute prohibiting the in-state manufacture of liquor that would be sold out-of-state. 146 In setting forth its rationale, the Court asserted:
No distinction is more popular to the common mind, or more
clearly expressed in economic and political literature, than that
between manufacturers and commerce. Manufacture is transformation-the forming of raw materials into a change of form
for use. The functions of commerce are different.'47
In perhaps the quintessential example of the formalist approach, United
States v. E. C. Knight Co., the Court categorically rejected congressional
authority to regulate the "manufacture" of sugar, based upon the Court's
view that the regulated activity did not involve interstate "commerce."' 148
42
1
Id.
141Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887) (codified as amended in
scattered sections of 49 U.S.C.).
'44 Sherman Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 17 (2000)).
41Lopez, 514 U.S. at 568 (1995) (Kennedy, J. concurring, joined by O'Connor, J.).
146Kidd v. Pearson, 128 U.S. 1 (1888).
141Id. at 20.
48United States v. E.C. Knight Co., 156 U.S. 1 (1895).
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As a result, Congress was powerless to prevent the monopolization of
more than ninety-eight percent of the country's refining capacity for domestic sugar. 149
A second formalistic test relied upon the distinction between "local"
and "national" activities. In Cooley v. Board of Wardens, for example, the
Court upheld against a dormant commerce clause challenge, state laws
regulating ship pilots. 5 ° Drawing a distinction between local and national
subjects, the Court stated:
Whatever subjects of this [commerce] power are in their nature
national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress ....
The act of 1789 contains a
clear and authoritative declaration by the first Congress, that the
nature of this subject is such, that until Congress should find it
necessary to exert its power, it should be left to the legislation
of the States; that it is local and not national; that it is likely to
be the best provided for, not by one system, or plan of regulations, but by as many as the legislative discretion of the several
States should deem applicable to the local peculiarities of the
ports within their limits. 5'
The Court's approval of the challenged Pennsylvania legislation was
based upon the perception that the state laws were "local in character and
object, an essential exercise of one branch of the police power of the
state, to aid and not to regulate commerce." '52
A third formalistic test limited the federal commerce power to the
regulation of only those activities that have a "direct" effect on interstate
commerce. This test precluded federal regulation of activities such as
wage-setting or price-fixing if their impact upon interstate commercehowever substantial-was deemed to be "indirect." In Schechter Poultry
Corp. v. United States, for example, the Court struck down federal legislation regulating employee hours and wages, finding that such activities
had only an indirect relationship to interstate commerce.'53 The Court
articulated its concern that ignoring the direct-indirect constitutional distinction might create a situation whereby "there would be virtually no
limit to the federal power and for all practical purposes we should have a
completely centralized government."' 54
'49 See Lopez, 514 U.S. at 570 (Kennedy, J. concurring).
'10Cooley v. Bd. of Wardens, 53 U.S. 299 (1851); see also Lopez, 514 U.S. at 554.
'151Cooley, 53 U.S. at 319.
152 1d. at 306.
113 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
0 Id. at 548.
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3. Realism and the Scope of the Commerce Clause
Beginning about 1937 and faced with the imperatives of the Depression and Roosevelt's New Deal, the Court retreated from these formalistic distinctions in a series of cases that adopted a realism approach. Under this line of analysis, the Court began to examine the actual impact of
an activity upon interstate commerce, focusing upon the degree to which
the regulated intrastate activity had an interstate effect.155 In general, the
Court has sustained federal regulation of intrastate activities where singly
or in the aggregate such local activities have a substantial impact upon
interstate commerce. In Wickard v. Filburn, the Court sustained a federal
statute that imposed quotas upon home-grown wheat. 56 Even though the
Court characterized the regulated activity as noncommercial,' 57 it held
that the wholly local activity of growing wheat for personal consumption
was subject to federal regulation if-taken together-all such local
farming activities exerted a "substantial economic effect on interstate
commerce."' 58 Based upon this "aggregation" or "cumulative effects"
doctrine, the Court subsequently described Wickard as "perhaps the most
far reaching example of Commerce Clause authority over intrastate activity."'59
Three broad categories of activity reflect the realism philosophy. The
modern Court recognizes three activities as appropriate subjects for Congressional regulation under the commerce clause power: (1) the use of
the channels of interstate commerce; (2) instrumentalities of, or persons
or things in, interstate commerce; and (3) activities that "substantially
affect" interstate commerce. 6° The first two of these categories represent
"I See Lopez, 514 U.S. at 569, 573-74 (Kennedy, J., concurring) (discussing rejection
of categorical tests and Court's "definitive commitment to the practical conception of the
commerce power"); United States v. Darby, 312 U.S. 100, 118 (1941) (upholding the Fair
Labor Standards Act and holding that congressional power under the commerce clause
"extends to those activities intrastate which so affect interstate commerce ... as to make
regulation of them appropriate means to the attainment of a legitimate end, the exercise of
the granted power of Congress to regulate interstate commerce"); see also Wickard v. Filburn, 317 U.S. 111, 123 n.24 (1942), quoted with approval in Lopez, 514 U.S. at 573-75
(Kennedy, J., concurring) (disapproving direct-indirect and local-national formalistic distinctions and quoting "' [W]hatever terminology is used, the criterion is necessarily one of
degree and must be so defined. This does not satisfy those who seek mathematical or rigid
formulas. But such formulas are not provided by the great concepts of the Constitution."');
Standard Oil Co. v. United States, 221 U.S. 1, 68-69 (1911) (rejecting manufacturingcommerce distinction as "unsound").
156 Wickard, 317 U.S. 11 (upholding the constitutionality of amendments to the federal Agricultural Adjustment Act of 1938 as applied to the homegrown production and
consumption of wheat).
'" Id. at 118 (upholding application of federal statute, even though it "extends federal
regulation to production not intended in any part for commerce but wholly for consumption on the farm").
58
'
Id. at 125.
9Lopez, 514 U.S. at 560.
'60 See id. at 565. In category three, the inclusion of the word "substantially" was de-
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the longstanding notion that the federal commerce power permits the
federal regulation of interstate activities that cross state lines. The third
category reflects a more expansive view of the commerce clause, permitting the regulation of even intrastate activities, provided they have the
required nexus to commerce.
This broad view of the affirmative commerce clause prevailed
throughout the remainder of the twentieth century, until the Court
abruptly changed course in its unexpected 1995 opinion, United States v.
Lopez, a case limiting "category three" federal regulation. 161 Rather than
make room for an expanded state regulatory authority, this dilution of the
federal commerce power was accompanied by a similar reduction in the
scope of state regulatory authority tolerated under the dormant commerce
clause doctrine.
B. The Affirmative Commerce Clause: Shrinkage62
In 1991, a prominent constitutional law scholar observed, "[A]fter
nearly 200 years of government under the Constitution, there are very
few judicially enforced checks on the commerce power."1 63 Just four
years later, in United States v. Lopez,"6 Chief Justice Rehnquist would
write on behalf of a 5-4 majority of the Court that "[t]he Constitution...
withhold[s] from Congress a plenary police power that would authorize
enactment of every type of legislation." 65 Accordingly, the Lopez Court
invalidated a federal statute that purported to prohibit firearms within
school zones, finding that such legislation exceeded Congress's authority
to regulate under the commerce clause. 'I The Court observed:
liberate. The Court observed:
Within this final category, admittedly, our case law has not been clear whether an
activity must "affect" or "substantially affect" interstate commerce in order to be
within Congress' power to regulate it under the Commerce Clause .... We conclude, consistent with the great weight of our case law, that the proper test re-
quires an analysis of whether the regulated activity "substantially affects" interstate commerce.
Id. at 559.
161Id. at
559.
162Aficionados
of the television show Seinfeld will recognize the potential horrors as-
sociated with the term "shrinkage" experienced by cold-water swimmers. See Seinfeld: The
Hamptons (NBC television broadcast, May 12, 1994).
163GUNTHER, supra note 4, at 93.
164514 U.S. 549. Chief Justice Rehnquist's majority opinion was joined by Justices
O'Connor, Scalia, Kennedy, and Thomas.
165Id. at 566. The Chief Justice also cited with approval the 1819 statement of Chief
Justice Marshall that the "[federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it ... is now
universally admitted" Id. (quoting McCulloch v. Maryland, 4 Wheat. 316, 405 (1819)).
166Lopez, 514 U.S. at 551.
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Admittedly, some of our prior cases have taken long steps down
that road [of converting congressional authority under the
Commerce Clause to a general police power of the sort retained
by the states]. The broad language in these opinions has suggested the possibility of additional expansion, but we decline
here to proceed any further. 167
The Lopez decision marked the end of a sixty-year period during which
the Court had rejected every commerce clause challenge to federal legislation that was brought before it.
This Section will consider three recent decisions that indicate the
Court's potential willingness to contract the scope of the affirmative
commerce clause.'68 A careful examination of the Court's rationale in
each case will illuminate the Court's developing stance toward congressional regulation in general and toward federal resource protection in
particular.
1. United States v. Lopez
In 1995, the Supreme Court halted a sixty-year expansion of commerce clause jurisprudence through the issuance of its decision in United
States v. Lopez. 169 In its 5-4 decision, the Court found that Congress exceeded its commerce clause authority by enacting the Gun-Free School
Zones Act, making it a federal offense for any individual knowingly to
possess a firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone. 17 Although Lopez did not involve
natural resources, several aspects of the decision may portend the future
of the environmental commerce clause.
First, the Lopez Court revived the local-national distinction. Simultaneously, the Court imposed an important new limitation upon the federal commerce authority, restricting it to the regulation of activities that
are specifically "economic" in nature. 17' Evaluating the challenged federal gun legislation within the parameters of this new economic restric167Id. at
567 (internal citation omitted).
Article does not engage in a comprehensive analysis of Hodel v. Va. Surface
Mining & Reclamation Ass'n, 452 U.S. 264 (1981). Although this case falls within the
1978-2001 time period that this Article defines as relevant to the "environmental commerce clause" and although Hodel considers the constitutionality of a federal mining statute under the commerce clause, it was decided prior to the Court's recent efforts to limit
the reach of federal commerce authority, as represented by the trio of decisions in Lopez,
Morrison, and SWANCC.
168This
169514
U.S. 549 (1995).
170 Id. Chief Justice Rehnquist wrote the Court's opinion, joined by Justices O'Connor,
Scalia, Kennedy, and Thomas. Justice Kennedy (joined by Justice O'Connor) and Thomas
filed concurring opinions. Justices Breyer (joined by Justices Stevens, Souter, and Ginsburg), Stevens, and Souter filed dissenting opinions.
171Id. at 565-66.
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20031
tion and the old formalistic distinctions, the Court concluded that "[t]he
possession of a gun in a local school zone is in no sense an economic
activity that might, through repetition elsewhere, substantially affect any
sort of interstate commerce."' 7 2 The Court was offended by the intrusion
of Congress into "local" activities, finding that the respondent was a "local student at a local school."'73 Fearing an erosion of the distinction be-
tween "what is truly national and what is truly local," the Court struck
down the challenged federal legislation.'74 Thus, not only did the Court
reinvigorate the local-national distinction, but it introduced the "economic" restriction that may tip the balance of federalism in favor of the
states.
Second, Lopez revived the rationale supporting the distinction between activities that directly affect interstate commerce from those that
do so only indirectly.'75 In supporting its view, the Court quoted Schechter Poultry Corp., a 1935 decision that represents the last pre-Lopez decision invalidating federal regulation on commerce clause grounds:
There is a view of causation that would obliterate the distinction
between what is national and what is local in the activities of
commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A
society such as ours "is an elastic medium which transmits all
tremors6 throughout its territory; the only question is of their
7
size."'1
The Lopez Court identified specific categories of federal regulation
that may be particularly vulnerable to affirmative commerce clause challenges for their failure to directly affect commerce, including criminal
law, family law, and education. With respect to criminal law, the Court
rejected the general notion that violent crime constitutes commercial or
economic activity regulable by Congress, despite the federal petitioner's
arguments that violent crime results in substantial costs to the national
economy. The Court rejected such "costs of crime" reasoning as an attempt to subject activities that relate only tenuously to interstate com"I Id. at 567 (emphasis added).
173Id.
'74Id. at 567-68 (citing NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 30 (1937)). Subsequent to Jones & Laughlin Steel, however, the Court had stated that the "denomination of
an activity as a 'local' or 'intrastate' activity does not resolve the question whether Congress may regulate it under the Commerce Clause." Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 281 (1981) (holding that the federal Surface Mining Control
and Reclamation Act did not violate the commerce clause, where Congress "rationally
determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from that activity").
"I See supra notes 153-154 and accompanying text.
176 Lopez, 514 U.S. at 567 (quoting United States v. Schechter Poultry Corp., 295 U.S.
at 554 (1935) (Cardozo, J., concurring)).
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merce to federal regulation.'77 Similarly, the Court rejected the petitioner's efforts to cast the educational process as an economic activity,
the impairment of which could lead to a poor learning environment and a
less productive citizenry to the detriment of the national economy. The
Court dismissed this "national productivity" reasoning as a slipperyslope type of argument that would allow Congress to regulate virtually
any activity related to the "economic productivity of individual citizens."' 78 Similarly, the Court cited family issues such as marriage, divorce, and child custody as quintessential local activities that should remain beyond the purview of federal regulation, and that relate only tangentially or indirectly to interstate commerce.' 79
Why did the Court choose to revive the formalistic categorical distinctions that it had apparently abandoned in prior cases? The Court's
rationale may be particularly instructive in answering this question and in
attempting to predict the future of the environmental commerce clause.
In carving out categories of presumptively "noncommercial activity" that
affect interstate commerce only indirectly-criminal law, education, and
family law-the Court asserted its desire to protect state sovereignty and
traditional spheres of state authority. For example, the Court noted that
the "states possess primary authority for defining and enforcing the
criminal law."'
s
Similarly, the Court pointed to education as an area
where "states historically have been sovereign."'' In a concurring opinion, Justice Kennedy did not quarrel with the goal of the unconstitutional
federal statute, observing that "it is doubtful that any State, or indeed any
reasonable person, would argue that it is wise policy to allow students to
carry guns on school premises."'82 He justified the invalidation of the
statute, however, by invoking the categorical distinction that "education
is a traditional concern of the States."'83 In addition, the concurrence articulated the practical rationale that because the States serve as "laboratories for experimentation," they may be able to devise better solutions than
18 4
the federal government to the problem of guns in the schools.
In sum, the modern Court has indicated a propensity to restrict federal regulatory authority over entire subject matter areas based upon its
perception that such areas concern "local" issues of traditional concern to
1"Id. at 564. The Court emphasized its view of the indirect relationship between
criminal activity and commerce, stating "[t1o uphold the Government's contentions here,
we would have to pile inference upon inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general police power of the sort
retained by the States." Id. at 567.
178 See id. at 564.
"I See id.
80
Id. at 561 n.3 (citing Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).
1 Lopez, 514 U.S. at 564.
82Id. at 581 (Kennedy, J., concurring).
183Id. at 580 (citing Milliken v. Bradley, 418 U.S. 717, 741-42 (1974)).
1
84See id. at 581.
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The Environmental Commerce Clause
the states. This tendency to define federal authority as whatever remains
unregulated after the states have chosen to act turns the commerce clause
on its head. Under this logic, federal environmental law may be the next
subject matter area particularly susceptible to attack because the states
have traditionally exercised a dominant role in the regulation of land and
85
water resources.
2. United States v. Morrison
Five years after its decision in Lopez, the Court issued a second
opinion, United States v. Morrison,8 6 that continued to limit the scope of
the commerce clause. The Violence Against Women Act of 1994 provided a federal civil remedy against any person "who commits a crime of
violence motivated by gender."'87 When a female college student brought
a claim under that statute against two male students who had allegedly
raped her, the Fourth Circuit struck down the statute's civil remedy provision as exceeding Congress' commerce clause authority.'88 The Supreme Court was sympathetic to the petitioner's plight, opining that "[i]f
the allegations here are true, no civilized system of justice could fail to
provide her a remedy for the conduct of respondent Morrison."'81 9 Nevertheless, the Court upheld the judgment of the Fourth Circuit, holding that
"under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."' 90 The same Justices who
comprised the majority in Lopez joined the majority in Morri1
son.
19
The role of the states in this litigation is noteworthy. Thirty-six
states and the Commonwealth of Puerto Rico filed an amicus brief in
support of the petitioners and of the federal power to regulate. 92 Prior to
the enactment of the Violence Against Women Act, attorneys general in
thirty-eight states informed Congress that "[o]ur experience as Attorneys
General strengthens our belief that the problem of violence against
women is a national one, requiring federal attention, federal leadership,
and federal funds."'193 Moreover, during Senate hearings on the proposed
legislation, the National Association of Attorneys General joined in
unanimous support of the federal statute. 94 Petitioners and state amici
181See SWANCC, 531 U.S. 159, 173-74 (2001).
529 U.S. 598 (2000).
586
187Id.
at 605 (citing 42 U.S.C. § 13981(b) (1994) (repealed pursuant to Morrison)).
188See id. at 601-02.
189Id. at
627.
190Id.
'91 See supra note 170 and accompanying text (discussing majority opinion of Chief
Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas).
1 Morrison, 529 U.S. at 654 (Souter, J., dissenting).
193Id. at 661 (Breyer, J., dissenting).
94d. at 653 (Souter, J., dissenting) (citing Violence Against Women: Victims of the
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sought to sustain95 the challenged regulation as falling within Lopez's
"category three"' -federal regulation of activities that substantially affect interstate commerce. 19 6 Despite the strong showing of state support
for the federal legislation, the Court struck down the statute's civil remedy provision. The dissent noted wryly, "[I]t is, then, not the least irony
of these cases [Lopez and Morrison] that the States will be forced to en197
joy the new federalism whether they want it or not."'
The Supreme Court's decision in Morrison also reflects how the
affirmative commerce clause has evolved to promote and protect interstate business and trade.' 98 As the Court reflected in 1992:
[T]his [federalism] framework has been sufficiently flexible
over the past two centuries to allow for enormous changes in the
nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers
....
Yet the powers conferred upon the Federal Government by
the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role. 199
Justice Souter has remarked "[t]hat the national economy and the national legislative power expand in tandem is not a recent discovery." 2°°
At least three aspects of Morrison'sanalysis bear comment for their
future potential impact upon the environmental commerce clause. First,
as in Lopez, the Court applied the rationale of the discarded local-
national distinction. 20 1 As in Lopez, the Court's test for national regulation was whether the alleged violent acts of the respondents were "economic" in nature.202 In Morrison, the Court concluded that "[g]endermotivated crimes of violence are not, in any sense of the phrase, eco-
nomic activity."203 The Court supported its reliance upon the localnational distinction by asserting that "thus far in our Nation's history our
System, Hearing on S.15 Before the Senate Committee on the Judiciary, 102d Cong. 37-38
(1991)).
195See supra note 160 and accompanying text.
196Morrison, 529
U.S. at 609.
197Id. at 654 (Souter, J., dissenting).
198 Id. 608 (2000).
199New York v. United States, 505 U.S. 144, 157 (1992), quoted in Lopez, 514 U.S.
549, 574-75 (1995) (Kennedy, J., concurring); see also Pensacola Tel. Co. v. W. Union Tel.
Co., 96 U.S. 1, 9 (1877) (observing that the commerce powers "keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances").
200Morrison, 529 U.S. at 647 n. 15 (Souter, J., dissenting).
201See supra notes 150-152 and accompanying text.
202See Morrison, 529 U.S. at 610 (commenting that "a fair reading of Lopez shows
that the noneconomic, criminal nature of the conduct at issue was central to our decision in
that case").
203 Id. at
613.
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The Environmental Commerce Clause
2003]
of intrastate activity only
cases have upheld Commerce Clause regulation
'2
where that activity is economic in nature. 01
The dissenting justices accused the majority of "breath[ing] new life
into the approach of categorical limitation. ' 20 5 They noted the difficulties
inherent in applying such a formalist test, asking "[d]oes the local street
corner mugger engage in 'economic' activity or 'noneconomic' activity
when he mugs for money? ' '2°6 The dissent also disagreed with the majority's examination of the regulated activity itself, rather than the potential
effect of the activity upon interstate commerce:
[W]hy should we give critical constitutional importance to the
economic, or noneconomic, nature of an interstate-commerceaffecting cause? If chemical emanations through indirect environmental change cause identical, severe commercial harm outside a State, why should it matter whether local factories or
home fireplaces release them?2 °7
Second, Morrison revived the direct-indirect distinction of earlier
case law.20 The majority acknowledged that Congress had made "numerous findings" regarding the serious impacts of gender-motivated violence
and that Congress had found that such violence indeed substantially affects interstate commerce. 209 Nevertheless, the Court declined to accept
such an indirect or "attenuated" effect upon interstate commerce as a
validation of the statute. 2'0 The Court rejected what it termed Congress's
"but-for-casual chain," noting that such sweeping logic "would allow
Congress to regulate any crime as long as the nationwide, aggregated
impact of that crime has substantial effects on employment, production,
transit, or consumption." '' In rejecting Congress's findings, the Court
repeated its view in Lopez that the regulation of certain subject matter
areas-including violent crime, marriage, divorce, and child rearingshould be reserved to the states, despite the significant aggregate effect of
2
04Id. The court also stated that "in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." Id. at 611.
205Id. at 640-41 (Souter, J., dissenting) (noting the prevalence of a non-categorical approach to the commerce clause from the period after 1937 through Lopez).
206Morrison, 529 U.S. at 656 (Breyer, J., dissenting).
207 Id.
208See
at 657.
supra notes 153-154 and accompanying text. Lopez signaled the first modem
revival of the direct-indirect dichotomy. See supra notes 175-179 and accompanying text.
2
o9Morrison, 529 U.S. at 614-15.
210 Id. at 615; see also id. at 628-29, 632 (Souter, J., dissenting) (characterizing congressional findings as a "mountain of data ... showing the effects of violence against
women on interstate commerce," demonstrating that such crime costs the national economy
at least $3 billion annually).
211 Id.
at 615.
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such activities upon the national economy. 2 12 Not only does this aspect of
Morrison bear upon the direct-indirect distinction, but it also indicates
the Supreme Court's radically diminishing deference toward findings of
Congress.2" 3
Third, Morrison restricted the aggregation principle first set forth in
Wickard v. Filburn.24 The Court indicated doubt as to Congress' conclusion that individual acts of violent intrastate crime-taken in the aggregate-substantially affect interstate commerce.215 Even if it were to accept the congressional findings of violent crime's commercial impacts,
the Court suggested that the statute might still fail to pass constitutional
muster. In a statement that reinforced Lopez's constriction of federal activities that fall into "category three,"216 the Court stated, "If accepted,
petitioners' reasoning would allow Congress to regulate any crime as
long as the nationwide, aggregated impact of that crime has substantial
effects on employment, production, transit, or consumption. ' 217 Rather,
the majority insisted that "in every case where we have sustained federal
regulation under the aggregation principle in Wickard v. Filburn . . . the
regulated activity was of an apparent commercial character." 218 Justice
Thomas's concurrence underscored this point, repeating his Lopez argument that the "substantial effects" test should be discarded entirely as
contrary to the original understanding of the commerce clause. 2 9 The
majority stopped short of adopting Justice Thomas's suggestion, stating:
While we need not adopt a categorical rule against aggregating
the effects of any noneconomic activity in order to decide these
cases, thus far in our Nation's history, our cases have upheld
212Id. at 615-16 (limiting the specter of federal inrusion into traditional state areas,
even though the "aggregate effect of marriage, divorce, and childrearing on the national
economy is undoubtedly significant").
23 For a critical view of "the Court's intrusion into congressional processes," including
its willingness to "wrongly transplant[ ] to constitutional statutory review the model of
judicial review of administrative decisionmaking," see Philip P. Frickey & Steven S. Smith,
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 YALE L.J. 1707 (2002).
24 See supra notes 156-159 and accompanying text.
225Morrison, 529 U.S. at 614 (arguing that simply "because Congress may conclude
that a particular activity substantially affects interstate commerce does not necessarily
make it so") (quoting Lopez, 514 U.S. 549, 557 n.2 (1995)). But see Morrison, 529 U.S. at
632 (Souter, J., dissenting) (citing numerous congressional findings relating violence
against women to interstate commerce, including the conclusion that violent crime "costs
this country at least 3 billion-not million, but billion-dollars a year").
26 See supra note 160 and accompanying text.
217Morrison, 529 U.S. at 615.
21
1Id. at 611 n.4.
229Id. at 627 (Thomas, J., concurring).
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The Environmental Commerce Clause
activity only where
Commerce Clause regulation of interstate
22 °
nature.
in
economic
is
activity
that
In conclusion, the Court stated forcefully, "We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate coma distinction between what is truly namerce. The Constitution requires
221
tional and what is truly local."
The Court's rationale in Morrison is consistent with that of Lopez. In
particular, the Morrison Court emphasized its solicitude for the protection of areas of traditional state regulation from federal intrusion. The
Court claimed that the regulation of certain types of activities-such as
intrastate violence and family law-have "always been the province of
refused to recognize a general police
the States." 22 2 Moreover, the Court
223
power in the federal government.
3. Solid Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers
In 2001, the Court decided Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers ("SWANCC') by the same 5-4
majority that had decided Lopez and Morrison.224 In SWANCC, the Court
invalidated a regulation purporting to exert federal authority over wetlands frequented by migratory birds.225 Although the case was decided on
narrow statutory grounds, the Court's dicta cast doubt upon the future of
federal efforts to protect land and water resources.
In SWANCC, the Army Corps of Engineers ("the Corps") had
claimed federal regulatory jurisdiction to protect so-called "isolated"
wetlands-intrastate ponds that were neither navigable themselves nor
tributary or adjacent to navigable waters. 226 A consortium of Illinois mu220
Id. at 613.
Id. at 617-18. But see id. at 613 (noting that "we need not adopt a categorical rule
against aggregating the effects of any noneconomic activity in order to decide these cases
by finding a relationship to interstate commerce).
222Morrison, 529 U.S. at 618 (labeling this idea as "one of the few principles that has
been consistent since the [Commerce] Clause was adopted"); see also id. at 615-16 (citing
family law as "area[ ] of traditional state regulation").
223Id. at 618. The Court stated, "Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States,
than the suppression of violent crime and vindication of its victims." Id.; see also id. at 627
(Thomas, J., concurring) (favoring elimination of the "substantial effects" test in order to
avoid224a federal appropriation of the state police power).
SWANCC, 531 U.S. 161 (2001). The majority opinion was written by Chief Justice
and joined by Justices O'Connor, Scalia, Kennedy, and Thomas.
Rehnquist
22
5 Id.
226SWANCC, 531 U.S. at 161; see also 33 C.F.R. § 328.3 (2001) (Corps regulation asserting Clean Water Act jurisdiction over intrastate waters that are tributary or adjacent to
jurisdictional waters).
221
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nicipalities had planned to develop an abandoned sand and gravel pit into
a solid waste disposal facility, filling in permanent and seasonal ponds
located on the 500-acre site. 227 When the Corps claimed regulatory jurisdiction under the Clean Water Act 22 8 and denied permission to proceed
with the project, the municipalities brought suit. They alleged that a) the
Corps had exceeded its statutory authority in interpreting the Clean Water Act to regulate isolated wetlands, and b) Congress lacked229power under the commerce clause to grant such regulatory jurisdiction.
The Court cited the Corps's finding that more than one hundred bird
species utilized the site, including migratory birds that crossed state
lines. 2 ° The Court acknowledged the Seventh Circuit's conclusion that
the municipalities' planned destruction of the natural habitat of migratory
birds-when aggregatedwith the similar activities of other developerswould have a substantial impact upon interstate commerce because "each
year millions of Americans cross state lines and spend over a billion
dollars to hunt and observe migratory birds. 231' Nevertheless, the Court
held that Congress did not intend to regulate waters such as those on the
petitioner's site and that the Corps had exceeded its statutory authority in
attempting to exercise jurisdiction over the area. 232 In reaching its statutory-based holding, the Court indicated its "prudential desire not to
needlessly reach constitutional questions. '233 Ignoring its own admonition, the Court proceeded to discuss the constitutional ramifications of
the case in dicta. 234 Whatever their status, the Court's constitutional
comments provide important clues that reveal the present attitude toward
federal protection of natural resources.
227
SWANCC, 531 U.S. at 162-63.
U.S.C. § 1344 (2000).
SWANCC, 531 U.S. at 165-66.
228 33
229
230Id.
at 164; see also id. at 194 (Stevens, J., dissenting) (citations omitted) (noting
that the proposed landfill site is home to "the second-largest breeding colony of Great Blue
Herons in northeastern Illinois and several species of waterfowl protected by international
treaty and Illinois endangered species laws").
23! SWANCC, 531 U.S. at 166.
232Id. at 172-74.
233Id. at 172-73. The Court stated:
Where an administrative interpretation of a statute invokes the outer limits of
Congress' power, we expect a clear indication that Congress intended that result.
This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize
administrative agencies to interpret a statute to push the limit of congressional
authority.
Id.
234The Court itself indicated that its decision was based solely upon statutory, rather
than constitutional, grounds. See id. at 162 (summarizing the questions presented and
stating that "[w]e answer the first [statutory] question in the negative and therefore do not
reach the second [constitutional question]").
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The Court repeated its now-familiar concern that the judiciary
should not tolerate "federal encroachment upon a traditional state
power. 235 Whereas Lopez and Morrison had sought to protect nonenvironmental categories of state regulation such as criminal law, family
law, and education, SWANCC specifically enumerated land and water use
as areas within "the States' traditional and primary power."2 36 Ironically,
although the Clean Water Act authorizes the states to administer their
own wetlands permitting program,2
37
Illinois had declined to develop
program. 238
such a
Furthermore, the Court engaged in a somewhat novel
interpretation of the Clean Water Act, emphasizing the states' role in
controlling water pollution and Congress's desire to "recognize, preserve,
and protect the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution. '239 The Court declined to acknowledge,
however, that the impetus for enacting the statute was the growing recognition that water pollution is a problem of national scope and that prior
state efforts to correct the problem had failed.24
SWANCC is also noteworthy for its explicit validation of federal
regulation of activities that "substantially affect" interstate commerce
and for its continued approval of the "aggregation doctrine,"24 ' despite the
willingness of Justice Thomas to eliminate both justifications for federal
regulation. 42 This validation is relevant to the question of the future of
the environmental commerce clause because most federal environmental
231Id. at 173. But see id. at 191 (Stevens, J., dissenting) (distinguishing between traditional state land use regulation and federal environmental laws and stating, "The CWA is
not a land-use code; it is a paradigm of environmental regulation. Such regulation is an
accepted exercise of federal power.").
236 SWANCC, 531 U.S. at 174. The Court also reiterated that "'[riegulation of land use
[is] a function traditionally performed by local governments."' Id. at 174 (quoting Hess v.
Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44 (1994)).
237 33 U.S.C. § 1344(g)(1) (2000).
238 SWANCC, 531 U.S. at 192 (Stevens, J., dissenting) (noting that "[i]t is particularly
ironic for the Court to raise the specter of federalism while construing a statute that makes
explicit efforts to foster local control over water regulation" and concluding that
"[b]ecause Illinois could have taken advantage of the opportunities offered to it through
§ 404(g), the federalism concerns to which the majority adverts are misplaced"). At this
time, only Michigan and New Jersey have assumed administration of the section 404 pro-
gram. See U.S. Environmental Protection Agency, Wetlands: State or Tribal Assumption of
the Section 404 Permit Program, http://www.epa.gov/owow/wetlands/facts/fact23.html
(last 23modified
July 3, 2002) (on file with the Harvard Environmental Law Review).
9
SWANCC, 531 U.S. at 166-67 (quoting 33 U.S.C. § 1251(b) (1994)).
240See, e.g., 33 U.S.C. § 1251(a) (listing seven "national" goals and policies related to
pollution prevention); Sam Kalen, Commerce to Conservation: The Call for a National
Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N.D. L. REV.
873 (1993) (noting the evolving understanding of the need for national water regulation).
The SWANCC dissent criticized the majority for ignoring the history of federal water
regulation. SWANCC, 531 U.S. at 179 (Stevens, J., dissenting) (describing the Clean Water
Act as "the first truly comprehensive federal water pollution legislation").
241The Court indicated that to resolve the constitutional issues that had been raised,
"we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce." SWANCC, 531 U.S. at 173.
242 See supra notes 219-223 and accompanying text.
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statutes that survive a commerce clause challenge rely precisely upon
these two rationales.243
However, the SWANCC Court tempered its approval of this type of
federal law by indicating its interest in closely examining challenged
federal regulations for the requisite nexis to commerce or commercial
activities.2' In the case at bar, the Court expressed skepticism that the
Corps's attempted regulation was aimed at the commercial activity of
municipal landfill development, dismissing the government's proffered
rationale as mere belated rationalization:
These arguments [that the commerce power allows the federal
government to protect migratory birds and the wetlands upon
which they depend] raise significant constitutional questions.
For example, we would have to evaluate the precise object or
activity that, in the aggregate, substantially affects interstate
commerce. This is not clear, for although the Corps has claimed
jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now, post
litem motam, focus upon the fact that the regulated activity is
petitioner's municipal landfill, which is "plainly of a commercial nature."245
The Court's inclusion of the word "object" may indicate an ongoing
shift in its approach. Previously, the Court has invalidated federal regulations that apply to wholly intrastate, noncommercial activities.246 Federal
environmental laws might be rendered vulnerable to commerce clause
challenges if the Court shifts its focus from the nature of regulated activities (such as violence in the schools, violence against women, or
commercial landfill development) to the nature of protected objects (such
as school children, women, migratory birds, or wetlands). In other words,
whereas activities proscribed on environmental grounds are often commercial in nature,2 47 the objects of such environmental protection invariably have little to do with economics or commerce. In fact, virtually any
federal law with noncommercial social or environmental goals could be
invalidated under this logic. Such a result would be consonant with Jus-
243See, e.g., John P Dwyer, The Commerce Clause and the Limits of Congressional
Authority to Regulate the Environment, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,421 (1995);
William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,741 (2001); Turner, supra note 5.
244See supra notes 171-174 and accompanying text.
24
1 SWANCC, 531 U.S. at 173.
246See supra notes 171-172 and accompanying text.
247See SWANCC, 531 U.S. at 193 (Stevens, J.,
dissenting) (arguing that "the discharge
of fill material into the Nation's waters is almost always undertaken for economic reasons").
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tice Thomas's emphatic view that the "Federal Government has nothing
248
approaching a police power.
C. The Dormant Commerce Clause: Expansion
On its face, the commerce clause contains only an affirmative grant
of power to Congress, remaining silent as to the effect-if any-of this
grant upon the authority of the states to regulate in areas that might
overlap with the federal sphere of commerce authority.24 9 The Constitution enumerates the affirmative commerce power of the federal government in one brief sentence: "Congress shall have Power ...To regulate
Commerce with Foreign Nations, and among the several States, and with
the Indian Tribes."5 0 The putative goal of this clause was to guarantee
"an area of trade free from interference by the States."2 ''
And yet, since its 1824 decision in Gibbons v. Ogden,25 2 the Court
has read into the clause an implied limitation upon state regulation. 3 In
Gibbons, Chief Justice John Marshall addressed perhaps the easiest circumstance under which the federal commerce clause might invalidate
state legislation: where the latter creates an actual conflict with legislation enacted pursuant to the authority of the former.2 4 In so doing, Chief
Justice Marshall engaged the Court in an uncertain enterprise, one with
which it has struggled for more than 175 years.
This Section will evaluate eight of the Court's most recent decisions
involving state natural resource laws that potentially run afoul of the
dormant commerce clause. The discussion will highlight the views of
individual justices in an effort to find a pattern in the seeming chaos of
the cases. Of all the current members of the Court, Chief Justice
Rehnquist has been perhaps most consistent in his advocacy of state
authority.
In each of the natural resource cases discussed below, Chief Justice
Rehnquist has supported the challenged state regulation, repeatedly ad248 Lopez, 514 U.S. 549, 584-85 (1995) (Thomas, J., concurring); see also Morrison,
529 U.S. 598, 627 (2000) (Thomas, J., concurring) ("Until this Court replaces its existing
Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the
guise of regulating commerce.").
119
The commerce clause provides, "The Congress shall have Power ...[t]o regulate
Commerce
...among the several states ....
"U.S. CONST.art. I, § 8, cl. 3.
250
Id.
2' See,
e.g., Boston Stock Exch. v. St. Tax Comm'n, 429 U.S. 318 (1977).
U.S. (9 Wheat.) 1 (1824). The Gibbons case is discussed in supra notes 140-142
and accompanying text.
23 At least one member of the current Supreme Court would characterize the dormant
commerce clause analysis in Gibbons as mere dicta. See Tyler Pipe Indus. v. Wash. St.
Dep't of Revenue, 483 U.S. 232, 259-60 (1987) (Scalia, J.,dissenting) (citing Case of the
State Freight Tax, 15 Wall. 232 (1873) as the first time that "the doctrine of the negative
CommerceClause was formally adopted as holding of this Court").
2m See Gibbons, 22 U.S. at 1.
21222
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vocating the view that states retain at least a "residuum of power" to
make laws that affect interstate commerce, as long as those laws do not
conflict with federal legislation.2 55 This is particularly true, according to
Chief Justice Rehnquist, where the state law is "directed to legitimate
local concerns,"
such as the protection of health, safety, and the environ25 6
ment.
In contrast, the opinions of Justices Scalia and Thomas have been
the most inconsistent puzzle of all the justices on the Court. Both have
asserted strong objections to the very foundations of the dormant commerce clause. For example, in his first term on the Court, Justice Scalia
asserted forcefully that the grant of federal authority under the commerce
clause is not exclusive and contains "no correlative denial of power over
commerce to the States. '257 In an impassioned dissent to the invalidation
of a manufacturing tax imposed by the State of Washington, Justice
Scalia stated:
In sum, ...
the Court for over a century has engaged in an en-
terprise that it has been unable to justify by textual support or
even coherent nontextual theory, that it was almost certainly not
intended to undertake, and that it has not undertaken very well.
It is astonishing that we should be expanding our beachhead in
this impoverished territory, rather than being satisfied with what
we have already acquired by a sort of intellectual adverse possession.5 '
2" See Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 116 (1994)
(Rehnquist, C.J., dissenting) (quoting Hunt v. Wash. St. Apple Advertising Comm'n, 432
U.S. 333, 350 (1977)). Chief Justice Rehnquist participated in each of the eight decisions
analyzed in Part III.C.2-4, voting in favor of state resource protection in every case.
256 See Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Res., 504 U.S.
353, 368 (1992) (Rehnquist, C.J., dissenting).
257 Tyler Pipe Indus., 483 U.S. at 260-61 (Scalia, J., dissenting) (acknowledging that
over the course of more than 150 years, "our applications of the [dormant commerce
clause] doctrine have, not to put too fine a point on the matter, made no sense").
258Id. at 265. Justice Scalia advocates an abandonment of the "balancing" approach
used in negative commerce clause cases, "leav[ing] essentially legislative judgments to the
Congress." Bendix Autolite Corp. v. Midwesco Enter., 486 U.S. 888, 897-98 (1988)
(Scalia, J., concurring in judgment invalidating state tolling statute of limitations, on narrow ground that record contains a "brief implication that there is here a discrimination
unjustified by any state interest"). If the Court, in addition to Congress, must become involved in the enforcement of the dormant commerce clause, then Justice Scalia would
support only a very limited test under which "a state statute is invalid under the Commerce
Clause if, and only if, it accords discriminatory treatment to interstate commerce in a respect not required to achieve a lawful state purpose. When such a validating purpose ex-
ists, it is for Congress and not us to determine it is not significant enough to justify the
burden on commerce." Id. at 898; see also CTS Corp. v. Dynamics Corp., 481 U.S. 69, 95
(1987) (Scalia, J., concurring in part and concurring in the judgment) (complaining that an
inquiry into whether the burden imposed by a state statute on commerce is excessive in
relation to its claimed benefits is "ill suited to the judicial function and should be undertaken rarely if at all").
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Similarly, Justice Thomas favors only a narrow application of the dormant commerce clause. He joined a dissent written by Justice Scalia,
which asserted that they would enforce a self-executing negative commerce clause only on the basis of stare decisis to produce "a clear rule
that honors the holdings of our past decisions but declines to extend the
rationale that produced those decisions any further. '259 Despite their unenthusiastic view of the dormant commerce clause, both justices have
consistently invalidated all state natural resource regulations that they
have considered in challenges brought under the dormant commerce
clause. 26°
1. DoctrinalIncoherence
Some have interpreted the affirmative commerce clause as granting
exclusive authority to Congress to regulate commerce. 261 Under this view,
when Congress does not act, the courts may step in to enforce the dormant aspect of the commerce clause by invalidating state legislation that
regulates commerce. Although the Constitution contains no express restraints against state legislation, "[tihe bounds of these restraints ... have
emerged gradually in the decisions of [the Supreme Court] giving effect
to the ... basic purpose [of the commerce clause.] ' 262 This dormant
commerce clause is premised upon the "principle that our economic unit
is the Nation, which alone has the gamut of powers necessary to control
has as its corollary that the states are not
...the economy, . . . [which]
263
units.
economic
separable
Other commentators argue that the constitutional silence as to the
correlative scope of state authority provides no basis for judicial invalidation of state legislation. As Justice Scalia asserts, the growth of federal
authority would soon obliterate all state laws remotely impacting commerce:
The exclusivity rationale is infinitely less attractive today than it
was [in the past.] Now that we know interstate commerce em29 W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 207-12 (1994) (Scalia, J.concurring, joined by Thomas, J.). The concurrence explained that state regulation should be
invalidated on commerce clause grounds in only two situations: (1) where the state law
"facially discriminates" against interstate commerce, or (2) where the state law is "indistinguishable from a type of law previously held unconstitutional by this Court." Id. at 210.
260See infra Part IV and Appendix. See generally WILLIAM COHEN & JONATHAN D.
VARAT, CONSTITUTIONAL LAW: CASES AND MATERIALS
1068-88 (11 th ed. 2001) (contain-
ing table of the members of the U.S. Supreme Court and the term of each).
261In 1852, for example, Justice Curtis wrote, "Whatever subjects of this power are in
their nature national, or admit only of one uniform system, or plan of regulation, may
justly be said to be of such a nature as to require exclusive legislation by Congress." Cooley v. Bd. of Wardens, 53 U.S. 299, 319 (1852).
262City of Philadelphia v. New Jersey, 437 U.S. 617, 623 (1978).
263
Id. at 623 (quoting H.P. Hood & Sons v. Du Mond, 336 U.S. 525, 537-38 (1949)).
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braces such activities as growing wheat for home consumption,
...and local loan sharking, ... it is more difficult to imagine
what state activity would survive an exclusive Commerce
2
Clause than to imagine what would be precluded. 1
Justices Scalia and Thomas would limit severely the judicial enforcement
of the dormant commerce clause, striking state legislation "if, and only
if, it accords discriminatory treatment to interstate commerce in a respect
not required to achieve a lawful state purpose.
'265
Under the "negative" or "dormant" aspect of the commerce clause,
the Court's avowed purpose is to prohibit "economic protectionism,"
defined as "regulatory measures designed to benefit in-state economic
interests by burdening out-of-state competitors. ' 26 6 Although even the
most charitable
of observers would not describe this area of the law as
267
"coherent,"
one can assert with some confidence that the Court gener-
ally conducts three levels of analysis. First, the Court determines whether
the purpose of state law is to regulate interstate commerce. If so, the state
regulation is per se unconstitutional. 261 Second, the Court determines
whether a state regulation discriminates against interstate commerce ei-
ther on its face or in practical effect. 269 If so, then the statute will be subject to a demanding level of scrutiny under which "the burden falls on the
State to demonstrate both that the statute 'serves a legitimate local pur-
pose,' and that this purpose could not be served as well by available reasonable nondiscriminatory means. 270 Finally, where a nondiscriminatory
state statute nevertheless burdens interstate commerce, the Court will
2
64Tyler Pipe Indus., Inc. v. Wash. St. Dep't of Revenue, 483 U.S. 232, 261 (1987)
(Scalia, J., dissenting).
265Bandix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 898 (1988) (Scalia,
J., concurring); see Eule, supra note 9, at 427-28 (urging the Court to invalidate state
commercial regulation under a model "gauged to preserve processes rather than to protect
products," a model that is "more comfortably embedded in the privileges and immunities
clause of Article IV than in the commerce clause of Article I"); see also supra notes 257259 and accompanying text.
266See W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 192-93 (1994).
267See Lawrence, supra note 9, at 397 (compiling epithets for the Court's current dormant commerce clause jurisprudence, including "anachronistically metaphysical," "hopelessly confused," and a "quagmire").
268 See, e.g., Pike v. Bruce Church, Inc. 397 U.S. 137, 142 (1970) (setting forth a general rule to determine the validity of a state statute affecting interstate commerce, and assuming as a prerequisite to validity that the statute's "effects on interstate commerce are
only incidental" and that the statutory goal is "to effectuate a legitimate local public interest"); see also Edgar v. MITE Corp., 457 U.S. 624, 642-43 (1982) (plurality opinion) (asserting that the commerce clause "precludes the application of a state statute to commerce
that takes place wholly outside of the State's borders, whether or not the commerce has
effects within the state").
269Maine v. Taylor, 477 U.S. 131, 138 (1986).
270Id. (quoting Hughes v. Oklahoma, 441 U.S. 332, 336 (1974)) (upholding state ban
against the importation of baitfish, despite facial discrimination, where state successfully
proved its inability to prevent the spread of parasites and adulteration of its native fish
species by any other method).
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The Environmental Commerce Clause
apply the so-called "balancing test" articulated in Pike v. Bruce
Church.2 1 In this situation, the Court will presume a state regulation is
constitutional "unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits.
' 27 2
These tests have
engendered confusion. Beyond the issues of which test should be employed and which test has been employed, scholars dispute whether any
test should be employed, questioning the very pedigree of the dormant
273
commerce clause.
Given the confusion surrounding the dormant commerce clause, it is
not surprising that no one seems able to chart the Court's course with any
degree of precision. For the period 1953 through 1975, the Supreme
Court decided only eight dormant commerce clause cases involving state
regulations other than tax measures.2 74 During the last quarter of the
twentieth century, the number of decisions increased significantly. For
example, the scope of the dormant commerce clause was the central issue
in an additional ten decisions handed down between 1976 and 1981,275
and still ten more decisions written between 1986 and 1989.276 The
27 397 U.S. at 142. The Pike test applies primarily to the state regulation, rather than
taxation, of interstate commerce. See, e.g., Eule, supra note 9, at 479 (noting unique complexities of tax legislation and resultant tendency to resist synthesis of regulation and taxation cases); Regan, supra note 9, at 1101 (noting special feature of tax cases that makes it
necessary to split them off as a category in dormant commerce clause analysis).
Some have questioned whether the Pike test actually involves balancing at all. See Regan, supra note 9, at 1092 ("For almost fifty years, scholars have urged the Court to 'balance' in dormant commerce clause cases; and the scholars have imagined that the Court
was following their advice. The Court has indeed claimed to balance, winning scholarly
approval.... Despite what the Court has said, it has not been balancing"); see also Bendix
Autolite Corp. v. Midwesco Enter., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in
judgement) (asserting that, in application, the Court's so-called balancing test "is more like
judging whether a particular line is longer than a particular rock is heavy").
272Pike, 397 U.S. at 142. Ironically, the Pike Court set forth a test relevant to nondiscriminatorystate legislation, but then proceeded to analyze the legislation at bar under the
strict scrutiny test applicable to discriminatorylegislation. See id. at 145 (assuming legitimacy of asserted state interest, but nevertheless concluding that "[e]ven where the State is
pursuing a clearly legitimate local interest, this particular burden on commerce [requiring
business operations to be performed in the home State that could more efficiently be performed elsewhere] has been declared to be virtually per se illegal").
273 See, e.g., Epstein, supra note 10, at 30 (observing that, "[a]s an interpretive matter,
the case for the dormant commerce clause seems weak" and "Uludged by the interpretive
standards that I have invoked to condemn the expansive reading of the affirmative commerce clause, the case for the dormant commerce clause flunks").
274See Eule, supra note 9, at 425-26. Some commentators have isolated the state tax
cases as particularly confusing and problematic. Id. at 426 n.2 (noting that the author's
case statistics are concerned solely with state regulatory measures and omit "the equally
confusing and often more complex problem of dormant commerce clause limitations on
state taxation").
275 Id. at 426 n.4.
276See David S. Day, The Rehnquist Court and the Dormant Commerce Clause Doctrine: The Potential Unsettling of the "Well-Settled Principles," 22 U. TOL. L. REv. 675,
680-94 (1991) (tallying the judicial results and concluding that "the state regulators won
five and the interstate commerce challengers won five").
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significance of this "flurry of activity" remains unclear.277 Increased judicial involvement might signal a corresponding increase in judicial willingness to strike down discriminatory state regulations that have any impact upon interstate commerce. 78 This hypothesis is certainly true in the
context of state efforts to protect natural resources. With only one exception,279 the Court has invalidated every state law protecting water or land
resources that it has considered between 1978 and the end of the twentieth century.
2. The Water Cases
The Court has long recognized the regulation of water resources as a
power that is uniquely within the purview of the states. In 1908, Justice
50
Holmes stated in Hudson County Water Co. v. McCarter:
[It] appears to us that few public interests are more obvious, indisputable and independent of particular theory than the interest
of ... a State to maintain the rivers that are wholly within it
substantially undiminished, except by such drafts upon them as
the guardian of the public welfare may permit for the purpose of
2
turning them to a more perfect use. 11
Despite this longstanding understanding of the right of states to protect
their natural resources, the Court has invalidated the only state water law
that has come before it in a challenge under the dormant commerce
clause. 282 In striking the state statute, the Court articulated a vision of
water as commodity, rather than natural resource.
In its 1982 decision Sporhase v. Nebraska, the Court held unconstitutional, under the dormant commerce clause, a Nebraska statute that
277
Eule, supra note 9, at 426 (noting "flurry" of judicial activity and questioning
whether it is "doctrinal" or merely "numerical").
278At least Justices Scalia and Thomas would support the view that the Court has been
expanding the scope of the dormant commerce clause, striking as invalid an increasing
range of state regulations. See, e.g., W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 20708 (1994) (Scalia, J., concurring, joined by Thomas, J.) (supporting invalidation of particular Massachusetts pricing order under challenge, but complaining that the Court has
adopted an "expansive view of the Commerce Clause [that] calls into question a wide variety of state laws that have hitherto been thought permissible").
279See Maine v. Taylor, 477 U.S. 131, 131 (upholding state ban against the importation
of live baitfish from other states in order to protect the State's wild fish population from
potential harm caused by nonnative species).
280Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908) (upholding against
dormant commerce clause challenge New Jersey prohibition against the out-of-state transport of state waters).
28 Id. at 356.
282See Sporhase v. Nebraska, 458 U.S. 941 (1982). One lower court has viewed
Sporhase as "implicitly overruling" Hudson County Water State v. Ader, 1992 WL
119194, at *3 (Conn. Super. Ct. May 15, 1992) (unpublished opinion).
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The Environmental Commerce Clause
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limited the withdrawal of groundwater from any well within the state for
use in neighboring states. 283 Central to this holding was the Court's view
that water is an "article of commerce. '2 4 According to Justice Stevens's
majority opinion, 2 5 groundwater should be regulated at the federal level:
[Nebraska's claim that] ground water is not an article of commerce goes too far: it would not only exempt Nebraska ground
water regulation from burden-on-commerce analysis, it would
also curtail the affirmative power of Congress to implement its
own policies concerning such regulation ....
Ground water
and Congress has the power to
overdraft is a national problem
28 6
deal with it on that scale.
The Court insisted upon this conceptual commodification of water, despite the Nebraska Supreme Court's finding that state law established that
Nebraska groundwater does not constitute "a market item freely transferable for value among private parties, and therefore [is] not an article of
commerce." 287 Nineteen years later in SWANCC, Justice Stevens would
again articulate a broad view of the federal commerce power, arguing
that the affirmative commerce clause empowers the federal government
to pass legislation for the protection of wetlands, recognizing both the
hydrological and ecological connection between wetlands and waterways
of national interest. 288 By that time, however, the composition of the
and Justice Stevens's view was relegated to the disCourt had changed
2 89
minority.
senting
In Sporhase the Court was sympathetic to Nebraska's "genuine" and
"unquestionably legitimate" interest in preserving its diminishing
groundwater resources.290 Moreover, the Court recognized that state
authority to regulate scarce water resources for the protection of the public health and safety "is at the core of its police power," particularly
where the availability of the resource resembled a "good publicly produced" by the state through its conservation efforts.2 9' Nevertheless, the
Court invalidated the statute's reciprocity requirement, which forbade the
use of Nebraska water in any state that did not grant reciprocal rights to
withdraw and transport groundwater from that state into Nebraska.292 In
28 3
Sporhase, 458 U.S. at 941.
284 Id. at 954.
25 Justice Stevens was joined by Justices Blackmun, Brennan, Burger, Marshall, Pow-
ell, and
286 White. Id. at 942.
Id. at 953-54.
287Id. at 944 (quoting Sporhase v. Nebraska, 305 N.W. 2d 619 (Neb. 1981)).
288See SWANCC, 531 U.S. 161, 176 n.2 (2001) (Stevens, J., dissenting).
89Justice Stevens' dissent in SWANCC was joined by Justices Souter, Ginsburg, and
Breyer. Id. at 174.
290Sporhase v. Nebraska, 458 U.S. 941, 954-55 (1982).
291Id. at 956-57.
292Id.
at 944 (citing NEB. REv.
STAT.
§ 46-613.01 (1978)).
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particular, the Court held that the Nebraska statute was discriminatory on
its face and that Nebraska had failed to demonstrate that such discrimination was narrowly tailored to serve its legitimate conservation and
293
preservation interests.
In dissent, Justice Rehnquist, joined by Justice O'Connor, articulated
a vision that he has repeated consistently over the past two decades. Rejecting the view of water as a commodity, Justice Rehnquist argued passionately for the recognition of the states' "quasi-sovereign" interest in
protecting local water, air, and forests.2 14 At a certain point, according to
Justice Rehnquist, a state may "so regulate a natural resource [essential
not only to the well-being but often to the very lives of its citizens] as to
preclude that resource from attaining the status of an 'article of commerce' for the purposes of the negative impact of the Commerce
' The dissenting
Clause."295
justices may have been motivated by a desire
to promote state resource protection. Alternatively, they may have acted
out of hostility toward federal regulation, as indicated by the dissent's
criticism of the majority for its "gratuitous" suggestion that Congress
possesses constitutional authority to regulate the use and overdraft of
2 96
groundwater.
The legacy of Sporhase is uncertain. At one level, it retains precedential value for the proposition that state water resources are articles of
commerce, potentially subject to federal regulation. 97 And yet, in its
2001 decision in SWANCC, the Court indicated in dicta that federal
regulation of wetlands-certainly a subset of water resources-might be
beyond the scope of the affirmative commerce clause. 29' Three explanations are possible to reconcile the two decisions. First, it may be simply
that the factual distinction between groundwater and wetlands calls for a
different constitutional result.2 99 In fact, the Court suggested that the
status of water as market commodity might vary from state to state. 3°°
Alternatively, the pendulum may be swinging back toward a federalist
view under which the Court prefers state regulation to federal manage-
293Sporhase, 458 U.S. at
294Id.
958.
at 963 (Rehnquist, J., dissenting).
295Id.
at 963.
at 961; see supra note 286 and accompanying text (majority's suggestion that
Congress may regulate state groundwater resources).
297See supra note 286 and accompanying text.
29
1See SWANCC, 531 U.S. 159 (2001).
299 The SWANCC decision concerned so-called "isolated" wetlands located entirely
within one state. See id. at 159.
300
Sporhase, 458 U.S. at 949-50 (noting rule under Texas law that a landowner "could
use all of the percolating water he could capture from the wells on his land for whatever
beneficial purposes he needed it, on or off the land, and could likewise sell it to others for
use on or off the land and outside the basin where produced" and concluding that "ground
water, once withdrawn, may be freely bought and sold in States that follow this [Texas]
296Id.
rule, in those States ground water is appropriately regarded as an article of commerce").
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The Environmental Commerce Clause
ment.30 1 As a final possibility, the Court may be adopting a laissez faire
attitude toward the environment, disfavoring regulation at both the state
and federal levels.302 As discussed in Part IV, the votes of the individual
justices reflect all three of these explanations. In combination, however,
the decisions of nine justices have combined in a manner that often precludes environmental regulation at both the federal and state levels.
3. The Garbage Cases
In response to the critical shortage of landfill space, many states
have enacted measures designed to limit the importation or processing of
garbage from outside the state. 03 Predictably, those who stand to profit
financially through the operation of landfills or the transport of garbage
have opposed such measures as obstructions of commerce. In each of its
five late-twentieth century decisions considering the scope of state
authority to enact such measures, the Court invalidated the challenged
3°
state regulation .
This Section will analyze the following five cases as a group, seeking to extract themes common to all in an effort to understand the modem
Court's treatment of the dormant aspect of the environmental commerce
clause: (1) City of Philadelphia v. New Jersey (1978), (2) Chemical Waste
Management, Inc. v. Hunt (1992), (3) Fort Gratiot Sanitary Landfill v.
Michigan Department of Natural Resources (1992), (4) Oregon Waste Systems v. Departmentof Environmental Quality (1994), and 5) C & A Carbone
v. Town of Clarkstown (1994).305 Each case concerns local efforts to exclude
"foreign" waste, which includes solid waste or hazardous materials
brought into a county or state from outside the jurisdiction.
Two of the cases, Chemical Waste Management and Oregon Waste
Systems, involved differential surcharges under which foreign waste
brought into the state for disposal was assessed a higher charge than that
301 The SWANCC Court emphasized that land and water use are areas within "the
States' traditional and primary power." 531 U.S. at 174.
302See discussion infra Part IV.B.
303
See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 385-86 (1994) (observing that number of waste transfer and treatment cases heard by the Court has escalated,
indicative of the difficulty of state undertakings to develop "trash control systems that are
efficient, lawful, and protective of the environment"); see supra Part II.A.
304See C & A Carbone, 511 U.S. 383 (invalidating local flow control ordinance requiring all solid waste to be processed at a designated transfer station before leaving the
municipality); Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93 (1994) (invalidating state statute imposing extra fee on waste brought into Oregon from other states for
disposal); Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Res., 504 U.S. 353
(1992) (prohibiting importation of foreign waste for disposal unless explicitly authorized
by county waste management plan); Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334
(1992) (invalidating state statute imposing extra fee on hazardous waste brought into Alabama from other states for disposal); City of Philadelphia v. New Jersey, 437 U.S. 617
(1978) (invalidating New Jersey statute that prohibited the import of solid waste).
301 See supra note 304.
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imposed upon waste generated within the state. 3" The Court found such
differential surcharges to be invalid, "even if the surcharge merely recoups the costs of disposing of out-of-state waste.""3 7
Two other cases, City of Philadelphia and Fort Gratiot Sanitary
Landfill, considered state statutes that prohibited the importation of foreign waste into the jurisdiction.3" 8 The Court's disapproval of the challenged state law in City of Philadelphia is not surprising because the
state statute clearly discriminated on its face against other states, flatly
prohibiting the importation of certain wastes originating outside New
Jersey.3°9 More surprising, in Fort Gratiot Sanitary Landfill, the Court
also invalidated a Michigan statute that prohibited landfill operators from
accepting wastes produced outside their home counties and thus equally
restricting both in-state and out-of-state waste generators.1 °
The final case, C & A Carbone, concerned a town flow control ordinance requiring the deposit of all waste within the community at a single
town-sponsored transfer station.31' The Court struck down the ordinance,
even though it applied to all waste within the town's authority, whether
3 12
generated locally or in foreign jurisdictions.
These garbage decisions comprise the bulk of the modem Court's
31 3
treatment of the dormant commerce clause vis-a-vis natural resources.
As such, if they are of any explanatory value, they suggest a growth of
the dormant commerce clause, with a concomitant contraction of the
states' ability to regulate within the sphere of interstate commercial activity. On two occasions, the Court acknowledged explicitly this evolutionary expansion of the doctrine, 3 4 in both cases over a vigorous dissent.
In the only such dissent to capture more than two votes, 31 5 Justice Souter
306See Chem. Waste Mgmt., 504 U.S. 334; Or Waste Sys., 511 U.S. 93.
307Or. Waste Sys., 511 U.S. at 93, 100. The Court stated, "[E]ven if the surcharge
merely recoups the costs of disposing of out-of-state wastes in Oregon, the fact remains
that the differential charge favors shippers of Oregon waste over their counterparts handling waste generated in other States. In making that geographic distinction, the surcharge
patently discriminates against interstate commerce." Id. at 100.
308See City of Philadelphia,437 U.S. at 617; Fort Gratiot, 504 U.S. at 353.
309See City of Philadelphia,437 U.S. at 617.
310 See Fort Gratiot, 504 U.S. at 354.
311C & A Carbone, 511 U.S. at 383 (1994).
312Id. at 383-84.
313In addition to the garbage cases, the Court has issued one decision relevant to
states' authority to regulate water resources, see supra Part III.C.2, and two decisions relevant to states' authority to limit the importation of live fish from other states. See infra Part
III.C.4.
14
See Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 95 (1994) (reaching
question left open in Chemical Waste Management whether a state differential surcharge
might be valid if based on the costs of disposing of wastes from other states); C & A Carbone, 511 U.S. at 386 (describing decision as "perhaps a small new chapter" in the course
of recent cases involving waste transfer and treatment, but contending that the current decision "rests nevertheless upon well-settled principles of our Commerce Clause jurisprudence").
315See C & A Carbone, 511 U.S. at 410 (Souter, J., dissenting, joined by Rehnquist,
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The Environmental Commerce Clause
chastised the majority for "greatly extending the Clause's dormant reach"
by "strik[ing] down an ordinance unlike anything this Court has ever in'
validated."316
The garbage decisions are of interest in at least three respects. First,
in every case the Court struck down the relevant state law, applying the
"strictest scrutiny" in its review of the state regulation, without considering the putative local benefits of the offending measure. Under this
"virtually per se rule of invalidity,"3 7 laudable environmental motives or
achievements become irrelevant." 8 Under this approach, in each of the
five garbage cases, the Court acknowledged that environmental protection and careful waste disposal practices may constitute legitimate state
interests but nevertheless invalidated the challenged state measures that
31 9
attempted to protect those interests.
Second, the garbage cases are important because they suggest that
the Court may be expanding its definition of "commerce" in the context
of the dormant commerce clause. In 1978, the Court held in City of
Philadelphia that the interstate movement of solid wastes constitutes
C.J., and Blackmun, J.). No more than two justices dissented from any of the other dormant commerce clause decisions discussed in this Article. See Appendix.
336C & A Carbone, 511 U.S. at 410-11. Compare supra 259 and accompanying text
(Justices Scalia and Thomas assert intention to enforce a "self-executing negative commerce clause only on the basis of stare decisis").
317City of Philadelphia v. New Jersey, 437 U.S. 617, 623-24 (1978) ("Thus, where
simple economic protectionism is effected by state legislation, a virtually per se rule of
invalidity has been erected.").
1
338 See, e.g., Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342 (1992) (asserting
that "[o]nce a state tax is found to discriminate against out-of-state commerce, it is typically struck down without further inquiry").
3'9 See City of Philadelphia,437 U.S. 625-26, 628 (invalidating New Jersey statute
that "[o]n its face ... imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space," and citing with approval appellants' contention that challenged state statute "while outwardly cloaked 'in the currently fashionable
garb of environmental protection,' . . . is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents");
Chem. Waste Mgmt., 504 U.S. at 342-43 (finding that Alabama statute imposing additional
hazardous waste disposal fee on all waste generated outside the state impermissibly discriminates on its face against interstate commerce, despite Court's acknowledgement that
Alabama may possess a legitimate interest in protecting its citizens from toxic wastes and
in conserving the state's environment and natural resources); Fort Gratiot Sanitary Landfill,
Inc. v. Mich. Dep't of Natural Res., 504 U.S. 353, 361, 363 (1992) (finding that Michigan
statute limiting counties' ability to accept out-of-county waste for disposal impermissibly
discriminates on its face against interstate commerce, and striking statute despite Michigan's contention that statute constitutes a comprehensive health and safety regulation
rather than economic protectionism of the state's limited landfill capacity); Or Waste Sys.,
511 U.S. at 93, 100, 107 (finding that Oregon statute imposing surcharge on out-of-state
waste deposited in Oregon landfills impermissibly discriminates on its face against interstate commerce, and striking statute despite Oregon's contention that statutory goal was
the protection of landfill space as an increasingly scarce natural resource); C & A Carbone,
511 U.S. at 391-93 (finding that town ordinance requiring deposit of all nonhazardous
waste at specified state-sponsored transfer station impermissibly discriminates on its face
against interstate commerce, and striking ordinance despite town's contention that regulatory goal was to ensure the safe handling and proper treatment of solid waste).
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"commerce," even if the wastes are "valueless" and possess no commercial worth.3 20 The Court explained that "the article of commerce is not so
much the solid waste itself, but rather the service of processing and disposing of it."32' Through that refinement, the Court expanded the constitutional strictures placed upon the states, precluding them from interfering with both the movement of garbage and the business of disposal.
Finally, the garbage cases reveal the Court's broad view of when
state statutes have a discriminatory purpose, the touchstone for application of the rule of virtually per se facial invalidity.3 22 In its analysis, the
Court expresses only a limited tolerance of state regulations ostensibly
designed to protect land and water from out-of-state waste disposal,
viewing many such measures as having a discriminatory purpose. These
cases may represent evidence of a developing trend under which the
Court is expanding the definition of discrimination. Alternatively, the
Court may doubt, as a factual matter, the sincerity of the environmentally
protective motives asserted by the states, viewing them as mere subterfuge designed to cover discrimination against out-of-state interests.323 If
the second explanation is true, then the garbage cases may be limited by
their facts, possessing no doctrinal significance.3 24
A close analysis of the Court's discrimination rhetoric, however,
lends support to the first of these two hypotheses-that indeed the Court
is expanding its view of discriminatory purpose. At the very least, the
Court has staunchly enforced the most restrictive aspects of the definition
as applied in prior cases. In this regard, the garbage cases remind us that
there is no de minimis exception and that even minor burdens upon interstate commerce constitute forbidden discrimination. In Oregon Waste
Systems, the majority dismissed Chief Justice Rehnquist's dissenting
view that "an increase of about $0.14 per week for the typical out-ofstate solid waste producer" seems "a small price to pay for the right to
deposit your 'garbage, rubbish, refuse ... sewage sludge, septic tank and
cesspool pumpings, . . . manure, . . . dead animals, [and] infectious
320City of Philadelphia,437 U.S. at 621-23.
321C & A Carbone, 511 U.S. at 391.
322 See
323In
supra note 270 and accompanying text.
1986, University of Michigan Professor Donald H. Regan argued convincingly
that for the fifty years preceding the publication of his article, the Court had been concerned solely with preventing "purposeful economic protectionism"-that is, striking
regulations borne of improper motives. Regan, supra note 4, at 1092. Professor Regan
asserted, "Not only is this what the Court has been doing, it is just what the Court should
do. This and no more." Id. However, Professor Regan's analysis considered cases decided
only through 1986, excluding four of the five cases considered in this Section.
3241 am certainly not the first person to ponder whether or not a specific subset of the
Court's dormant commerce clause decisions possess doctrinal significance. See, e.g., Eule,
supra note 9, at 426-27 (noting 1976-1981 "flurry of activity" in Court's dormant commerce jurisprudence, and questioning whether the ten decisions issued during that period
represent a resurgence that is "doctrinal" or merely "numerical").
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waste' on your neighbors."3 25 Rather, the majority described the dissent's
suggestion as a "novel understanding of discrimination" that runs counter
to the Court's precedents, "which clearly establish that the degree of a
differential burden or charge on interstate commerce 'measures only the
extent of the discrimination' and 'is of no relevance to the determination
' 32 6
of whether a State has discriminated against interstate commerce. '
Moreover, the Court counts as discrimination even incidental burdens placed upon commerce. In this regard, the Court has created a
difficult dilemma for the states. On the one hand, the Court acknowledges that its past opinion reflected an awareness that "incidental burdens
on interstate commerce may be unavoidable when a State legislates to
safeguard the health and safety of its people."327 And yet, the Court imposes such a heavy burden of proof upon the states that it becomes virtually impossible for the states to prove that their intentions are legitimate.
In Chemical Waste Management, for example, neither the Court nor petitioner disputed the legitimate environmental purposes served by Alabama's differential surcharge.3 28 Nevertheless, the Court invalidated the
statute because Alabama was unable to sustain its nearly insurmountable
burden of showing that the presumed discrimination was justified by a
factor unrelated to economic protectionism.3 29 Likewise, in Oregon Waste
Systems, the Court interpreted as discriminatory the state's imposition of
a differential surcharge for the purpose of recouping the costs of foreign
waste disposal.33 °
In addition, the garbage cases clearly warn that the states' attempts
to solve their environmental problems at the local level may constitute
discrimination. The Court repeatedly asserts that "[n]o state may attempt
to isolate itself from a problem common to the several States by raising
barriers to the free flow of interstate trade"33' nor engage in "economic
Balkanization. 33 2 In at least this aspect of its discrimination analysis, the
Court appears to break new ground. Both Fort Gratiot Sanitary Landfill
and C & A Carbone found discrimination by regulatory schemes that im-
12 Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 109 (1994) (Rehnquist,
C.J., dissenting) (citations omitted). Chief Justice Rehnquist is referring to the costs passed
on to individual household residents ("producers"), rather than charges incurred by commercial waste-haulers. Id. at 109 n.2.
326Id. at 100 n.4 (citations omitted).
327City of Philadelphia v. New Jersey, 437 U.S. 617, 623-24 (1978).
328Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 343 (1992).
329
Id. at 345. In dissent, Chief Justice Rehnquist defended Alabama's asserted environmentally protective motives: "States may take actions legitimately directed at the preservation of the State's natural resources, even if those actions incidentally work to disadvantage some out-of-state waste generators." Id. at 349.
330See supra note 319 and accompanying text.
331See Chem. Waste Mgmt., 504 U.S. at 339-40.
332
Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 98 (1994); see also City
of Philadelphia, 437 U.S. at 623-24 (reflecting an "alertness to the evils" of economic
protectionism and isolation).
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posed restrictions upon both in-state and out-of-state waste generators. In
C & A Carbone, the majority acknowledged a distinction between laws
that favor all local actors at the expense of out-of-state competitors and
laws that favor one specific local proprietor above all others, but concluded that "this difference just makes the protectionist effect of the or' This expansion
dinance more acute."333
of the definition of discrimination
prompted Justice O'Connor to file a concurring opinion in C & A Carbone, rather than join the majority opinion.3 Justice O'Connor expressly
concluded that the town's flow control ordinance does not discriminate
against interstate commerce because the town's "garbage sorting monopoly is achieved at the expense of all competitors, be they local or nonlo'
cal."335
In dissent, Chief Justice Rehnquist, Justice Souter, and Justice
Blackmun echoed Justice O'Connor's conclusion that "the exclusion
worked by [the town ordinance] bestows no benefit on a class of local
private actors, but instead directly aids the government in satisfying a
'
traditional governmental responsibility."336
4. The Fish Cases
The Court has also considered two challenges under the dormant
commerce clause to state fishery protection. In Hughes v. Oklahoma, the
State of Oklahoma had enacted a statute prohibiting the export of minnows taken from the state's waters to be sold out of state.337 The statute
seemed to contemplate a distinction between minnows as resources and
minnows as commerce, applying the ban only to minnows naturally occuffing within the state's boundaries and not to the export of stock minnows produced in commercial hatcheries.338 The Court struck the Oklahoma statute, overruling its previous decision in Geer v. Connecticut that
had held that the states "own" the wildlife within their borders for the
benefit of all their citizens.339 In so doing, the Hughes Court held that
henceforth "wild animals should be considered according to the same
34
general rule applied to state regulations of other natural resources.""
Seven years later, the Court sustained the State of Maine's ban
against the import of live baitfish. The Court's decision, Maine v. Tay333
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 392 (1994).
311See id. at 401 (O'Connor, J., concurring in the judgment).
331Id. at 404. Justice O'Connor argued that "the town's ordinance is unconstitutional
not because of facial or effective discrimination against interstate commerce, but rather
because it imposes an excessive burden on interstate commerce." Id. at 401.
336 Id. at 411 (Souter, J., dissenting).
3'" Hughes v. Oklahoma, 441 U.S. 322 (1979).
3 Id. at 325.
339
Id. at 326 (overruling Geer v. Connecticut, 161 U.S. 519 (1896)).
Id. at 335 (eliminating the "anomaly, created by the decisions distinguishing Geer,
that statutes imposing the most extreme burdens on interstate commerce (essentially total
embargoes) were the most immune from challenge").
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lor, 4' is significant because it represents the only dormant commerce
clause case considered in this Article where the law survived challenge.
The Court held that Maine's statute discriminated on its face against in342
terstate commerce and therefore subjected the statute to strict scrutiny.
Despite this searching level of review, the Court upheld the statute,
finding that it promoted the legitimate purpose of preventing the importation of baitfish parasites that might adversely affect Maine fish. 343 Furthermore, the Court held that there were no less discriminatory means
available to the state because testing procedures for baitfish parasites had
not yet been developed.3 44 The Court concluded with perhaps the strongest statement in favor of state resource conservation that it uttered in any
of the environmental commerce decisions considered in this Article:
The Commerce Clause significantly limits the ability of States
and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other
values. As long as a State does not needlessly obstruct interstate
trade or attempt to place itself in a position of economic isolation, it retains broad regulatory authority to protect the health
and safety of its citizens and the integrity of its natural resources 345
Taylor is also noteworthy for its deference to the trial court as fact finder
and its determinations concerning the State's legitimate purpose and lack
3 46
of less discriminatory motives.
D. The CuriousRelationship of the Two Commerce Clauses
This Section will attempt to determine the relationship between the
two clauses, limited to the context of the Court's environmental decisions
as a discrete and manageable subset of the commerce clause jurisprudence.347 Two options are logically possible.
First, it may be that the regulation of commerce is a sort of zero-sum
game under which an expansion of the constitutionally permissible
authority of either federal or state sovereign must be offset by a corre-1 477 U.S. 131 (1986). Justice Stevens was the lone dissenter.
2
343 Id. at 138.
14 1d. at 151.
3" Id.
341Id. at 151-52 (citations omitted). Of the justices who joined in the Taylor majority
opinion, only Justices Rehnquist and O'Connor remain on the Court at the time of this
writing.
346 Taylor, 477 U.S. at 144-45.
341 will leave to another day the daunting task of assimilating all of the Court's
affirmative and dormant commerce cases and contexts beyond natural resources law. For an
excellent synthesis and reconceptualization of both aspects of the clause between the Civil
War and World War II, see Cushman, supra note 13.
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sponding loss of regulatory authority by the other sovereign. This view is
premised upon the assumption that federal authority is exclusive, leaving
no area at the margins for state regulation. Further, this option seems to
require the Court to recognize and apply a consistent definition of "commerce" applicable in both the affirmative and dormant realms of inquiry,
such that Congress may regulate this commerce and the states may not.
Statements of James Madison at the Constitutional Convention provide
perhaps the strongest historical evidence supporting this notion of exclusivity: "Whether the States are now restrained from laying tonnage duties
depends on the extent of the power 'to regulate commerce.' These terms
34 In Gibbons v.
are vague but seem to exclude this power of the States.""
Ogden, Chief Justice Marshall suggested in dicta that Congress may possess an exclusive authority to regulate commerce that precludes similar
349
efforts by the states.
As a second logical possibility, the Court's affirmative commerce jurisprudence may be independent of its dormant commerce decisions. Accordingly, the Court could bring about a constriction (or expansion) of
the scope of federal regulatory authority without triggering an inversely
proportional change in the ability of the states to legislate. This approach
presumes that federal regulatory authority over commerce is shared with
the states, rather than exclusive of them, as long as the states do not impose an unacceptable burden upon interstate commerce.
1. Rhetoric: What the Court Has Said
The Court's dormant commerce decisions of at least the last quarter
of the twentieth century advance the view of a concurrent commerce
Tyler Pipe Indus. v. Dep't of Revenue, 483 U.S. 232, 263-64 (1987) (Scalia, J., dissenting) (arguing for nonexclusive federal authority over commerce, but acknowledging
Madison's comments as the "strongest evidence in favor of a negative Commerce Clausethat version of it which renders federal authority over interstate commerce exclusive")
(citing 2 MAX FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, at 625 (1937)).
349
Gibbons v. Ogden, 22 U.S. 1 (1824) (invalidating New York's grant of a steamboat
monopoly under the supremacy clause, finding a conflict with federal laws licensing the
coastal trade). Chief Justice Marshall summarized the appellant's argument in favor of
exclusive federal regulation:
[It] has been contended by counsel for the appellant, that, as the word "to regulate" implies in its nature, full power over the thing to be regulated, it excludes,
necessarily, the action of all others that would perform the same operation on the
same thing. .. . [That regulation] produces a uniform whole, which is as much
disturbed and deranged by changing what the regulating power designs to leave
untouched, as that on which it has operated.
Id at 209. In words that were not essential to his holding in the case, the Chief Justice observed, "There is great force in this argument, and the court is not satisfied that it has been
refuted." Id.
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authority that is shared by federal and state governments. 30 In Sporhase
v. Nebraska, the Court stated:
Our conclusion that water is an article of commerce raises, but
does not answer, the question whether the Nebraska statute is
unconstitutional. For the existence of unexercised federal regulatory power does not foreclose state regulation of its water resources, of the uses of water within the State, or indeed, of interstate commerce in water."'
Similarly, in the garbage cases the Court acknowledged that the existence
of a federal regulatory power does not end the inquiry into whether or not
state regulation of commerce is valid.35 2 In these dormant cases, the Court
has advanced an increasingly broad definition of interstate "commerce"
353
that encompasses the interstate movement of groundwater resources
and waste materials, regardless of whether they possess commercial
35 4
value.
More recently, the Court's affirmative commerce decisions of the
1990s articulate a less expansive definition of "commerce." In particular,
the Court has cited the regulation of education, violent crime, family law,
water, and land use as traditional state powers outside the range of federal commerce authority. 355 These pronouncements are susceptible to at
least two interpretations. The Court may desire simply to limit the opportunities for conflict between federal and state law, in order to avoid
the invalidation of the latter under the supremacy clause of the constitu-
350See Cushman, supra note 13, at 1147. Professor Cushman chronicles the "decoupling" of the affirmative and dormant clauses in the late 1930s:
But state and local regulations affecting ... commerce "directly" had long been
held to transgress the implicit limitations of the Commerce Clause. Were the
growth of federal power not to obliterate state and local regulatory authority by
implication, dormant Commerce Clause jurisprudence would have to be placed
upon a new footing. It would have to be decoupled from its affirmative counterpart, to abandon the categories the two had shared, and regulatory authority over
such matters would have to become concurrent.
Id.
35 458 U.S. 941, 954 (1982); see supra Part III.C.2.
352
See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389 (1994) (noting
that the "real question is whether the [local] flow control ordinance is valid despite its
undoubted effect on interstate commerce"); City of Philadelphia v. New Jersey, 437 U.S.
617, 623-24 (1978) (stating that the "opinions of the Court through the years have
reflected an alertness to the evils of 'economic isolation' and protectionism, while at the
same time recognizing that incidental burdens on interstate commerce may be unavoidable
when a State legislates to safeguard the health and safety of its people").
353See supra note 284 and accompanying text.
314See supra notes 320-321 and accompanying text.
351See supra notes 177-179 and accompanying text.
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tion.356 For example, in their Lopez concurrence, Justices Kennedy and
O'Connor voted to overturn federal guns in the schools legislation because "[tihe statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay
claim by right of history and expertise, and it does so by regulating an
activity beyond the realm of commerce in the ordinary and usual sense of
that term."3 7
Alternatively, these statements may indicate an impending sea
change in the Court-a willingness to expand the sphere of state regulatory authority at the expense of federal authority. There is some evidence
that the Court will first determine the full sphere of influence that should
be reserved to the states and then permit federal commerce regulation
only to the extent that it does not interfere with the regulatory authority
of the states. For example, in cutting back the federal commerce power
for the first time in sixty years, Chief Justice Rehnquist's majority opinion in Lopez expressed his concern that "the scope of the interstate commerce power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate
commerce so indirect and remote that to embrace them, in view of our
complex society, would effectually obliterate the distinction between
what is national and what is local and create a completely centralized
' The Court expressed a similar sentiment in Morrison,
government."358
explaining that it was cutting back on the scope of federal regulation in
order to reserve a broader sphere of authority for the states.359 Reminding
us that "[tihe Constitution requires a distinction between what is truly
356U.S. CONST. art. VI, cl. 2 ("This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the ...Laws of any State to
the Contrary notwithstanding.").
117Lopez, 514 U.S. 549, 583 (1995). The justices provide additional discussion of their
rationale, indicating their support of concurrent federal and state jurisdiction:
The tendency of this [federal] statute to displace state regulation in areas of traditional state concern is evident from its territorial operation. There are over
100,000 elementary and secondary schools in the United States .... Each of
these now has an invisible federal zone extending 1,000 feet beyond the ...
boundaries of the school property. In some communities no doubt it would be
difficult to navigate without infringing on those zones. Yet throughout these areas,
school officials would find their own programs for the prohibition of guns in danger of displacement by the federal authority unless the State chooses to enact a
parallel rule.
Id.
38 Id. at 557 (citations omitted) (quoting NLRB v. Jones & Laughlin Steel, 301 U.S. 1,
37 (1937)).
"I In dissent, Justice Souter argued that, contrary to the majority's view, "we have always recognized that while the federal commerce power may overlap the reserved state
police power, in such cases federal authority is supreme." Morrison, 529 U.S. 598, 639
n.12 (2000) (Souter, J., dissenting).
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national and what is truly local,' ' 360 the Court asserted that "[t]he regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has
always been the province of the States. 3 61 Therefore, the Court held the
federal law unconstitutional and stated, "Indeed, we can think of no better example of the police power, which the Founders denied the National
Government and reposed in the States, than the suppression of violent
crime and vindication of its victims. 362
2. Reality: What the Court Has Done
With only one exception, the Court has invalidated every natural resource protection regulation that it has considered between 1978 and
2001 in the context of a commerce clause challenge. 363 In so doing, the
Court has simultaneously struck federal, state, and local legislation. A
survey of this admittedly narrow sampling of cases indicates that the
affirmative environmental commerce clause has been shrinking, while its
negative counterpart has been expanding. The net result of these decisions, if continued into the future, may be a dearth of environmentally
protective legislation at both levels of government. Although the Court
has utilized the rationale of federalism, the consequences of its actions
have served a philosophy that goes beyond mere federalism. Rather, the
modern Court's anti-statist proclivity may be characterized more appropriately as laissez faire, rather than federalist, in tone.
A comparison of the Court's positive and negative commerce clause
decisions reveals two curious trends. First, despite its rhetoric that land
and water regulation are areas reserved to the states, the Court's dormant
commerce holdings have limited the states' ability to enact such legislation in every case that has come before the Court. This sleight of hand
has been accomplished through the rhetorical device of commodification.
That is, the dormant decisions create a dual identity for land and water,
3
60Id. at 617-18 (Rehnquist, C.J.).
361Id. at 618.
362
Id.
363For
a tabular depiction of the Court's holdings, see Appendix (column two). In
making this sweeping statement, I have excluded some dormant clause cases that may be
viewed only tangentially as natural resource cases. See, e.g., Wyoming v. Oklahoma, 502
U.S. 437 (1992) (striking Oklahoma statute requiring coal-fired electric utilities to burn a
mixture containing at least ten percent coal mined in Oklahoma, an act that caused Wyoming to suffer a consequential loss of tax revenue generated by the severance of its coal).
This exercise necessarily involves an element of discretion, and some readers may disagree
with my judgment. The exception to which I refer is Maine v. Taylor, 477 U.S. 131 (1986),
where the Court upheld a state ban on the importation of live baitfish from other states.
Justice Stevens was the lone dissenter in that case. Id. Although the Court found that the
state fish import ban discriminated on its face against interstate commerce, the Court held
that Maine had sustained its burden of demonstrating that the statute served a legitimate
local purpose that could not be served as well by any available nondiscriminatory method.
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both as natural resource and as market commodity. Although the former
may be the stuff of state authority, the latter falls squarely within the
scope of the federal commerce power. In Sporhase v. Nebraska, for example, the Court insisted on commodifying the state's water resources,
36
despite a contrary view expressed by the state's own supreme court.
The federal Court premised its view of water as commodity in part upon
the observation that "ground water, once withdrawn, may be freely
bought and sold" under the relevant state law.365 The precise dividing line
between commodity and resource remains unclear, allowing the Court
simultaneously to preclude federal regulation of resources and state regula366
tion of commodities.
A second curious aspect of the environmental commerce decisions
relates to the order in which the modern Court has considered the respective spheres of federal and state authority. Under the traditional view
of federalism, courts first determine whether the activity under consideration falls within the commerce authority expressly granted to the federal government by the Constitution. Only then should the courts ask
whether an overlapping state regulation unduly interferes with that federal authority. 36 The modern environmental commerce clause decisions
invert this scheme, as the Court often begins its analysis by identifying
spheres of regulation traditionally reserved to the states. 368 Then, the
Court proceeds to invalidate federal regulations that impinge upon the
domain of the states, thereby violating their sovereign autonomy. In
SWANCC, for example, the Court opined that the federal government
lacks authority over certain water bodies because it would result in "a
significant impingement of the States' traditional and primary power over
land and water use."369 This solicitude for excluding the federal govern-
ment from the province of the states is reminiscent of Tenth Amendment
analysis, rather than commerce clause jurisprudence.370 In fact, it appears
3M458 U.S. 941 (1982).
365 Id. at 949.
366 See, e.g., SWANCC, 531 U.S. 159, 172-73 (2001)
(suggesting in dicta that intrastate
waters such as ponds, mudflats, and water-filled abandoned sand and gravel pits lack an
interstate commercial aspect, even though "millions of people spend over a billion dollars
annually on recreational pursuits relating to migratory birds" that depend upon such water
sources).
367State statutes may be invalidated under the supremacy clause where they conflict
with an exercise of federal commerce authority. Where the federal power has not been
exercised, state laws may be invalidated nevertheless under the dormant commerce clause.
See supra notes 275-279 and accompanying text.
368See supra notes 189-191, 235, 255-257 and accompanying text.
369
SWANCC, 531 U.S. at 174; see also Morrison, 529 U.S. 598, 617-18 (2000) ("We
accordingly reject the argument that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct's aggregate effect on interstate commerce .... The
regulation and punishment of intrastate violence ... has always been the province of the
States.").
370The Tenth Amendment provides: "The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively,
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that Justice Thomas would conflate the two lines of inquiry. He bemoans
the Court's case law, which "could be read to reserve to the United States
all powers not expressly prohibitedby the Constitution."37 '
The Court accomplishes this inversion of federal and state roles
through a subtle rhetorical technique that utilizes two slightly different
definitions of "commerce." In the dormant commerce cases, the Court
has adopted a broad view of commerce that precludes state regulation. In
City of Philadelphia,for example, the Court indicated that a commodity
is anything that moves across state lines, including valueless wastes or
harmful items.372 Conversely, in the affirmative commerce cases, the
Court has recently applied a narrow view of commerce that precludes
federal regulation. In Morrison, for example, the Court defined commerce as including only economic activities that have a direct effect on
interstate commerce. 3
These inconsistent definitions contravene the
374
Court's previous rejection of such a two-tiered definition of commerce.
IV.
THE ENVIRONMENTAL COMMERCE CLAUSE:
Two VISIONS
Part III surveyed the Court's affirmative and dormant commerce
clause decisions, relying primarily upon the holding of each decision.
This Part will depart from a treatment of the Court as a monolithic whole
and focus instead upon the votes of the individual justices in each of the
or to the people." U.S. CONST. amend. X. See generally Lopez, 514 U.S. 549, 567 (1995)
("To uphold the Government's contentions here, we would have to pile inference upon
inference in a manner that would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained by the States ....To do
so would require us to conclude that the Constitution's enumeration of powers does not
presuppose something not enumerated.").
371
Lopez, 514 U.S. at 589 (Thomas, J., concurring) ("Our construction of the scope of
congressional authority has the ... problem of coming close to turning the Tenth Amendment on its head"). But see Morrison, 529 U.S. at 648 n.18 (Souter, J., dissenting) (criticizing the "special solicitude for 'areas of traditional state regulation"' as relying upon
"not the text of the Constitution but on what has been termed the 'spirit of the Tenth
Amendment"') (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 585
(1985) (O'Connor, J., dissenting)).
372
437 U.S. 617, 621-23 (1978); see also supra note 320 and accompanying text.
More recently, in C & A Carbone, the Court modified the City of Philadelphiadefinition,
noting that "the article of commerce here is not so much the waste itself, but rather the
service of processing and disposing of it." C & A Carbone, Inc. v. Town of Clarkstown,
511 U.S. 383, 389-92 (1994).
133
529 U.S. at 610-13; see also supra notes 206-208 and accompanying text. In concurrence, Justice Thomas expressed his view that commerce should include only economic
activities themselves, and not activities that impact interstate commerce, no matter how
strong or direct the impact. Id. at 627; see supra notes 223-224 and accompanying text.
314
See City of Philadelphia,437 U.S. at 621-22. The Court rejects the New Jersey Supreme Court's view that "there may be two definitions of 'commerce' for constitutional
purposes," including a "very sweeping concept" for the purpose of sustaining federal
regulation, and a "much more confined reach" for the purpose of restricting state legislation. Id. (quoting Hackensack Meadowlands Dev. Comm'n v. Mun. Sanitary Landfill Auth.,
348 A.2d 505, 514 (N.J. 1975)).
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eleven decisions that comprise the modern environmental commerce
clause.375 In its affirmative commerce clause decisions, the Court has
voted in a consistent 5-4 pattern against the challenged exercise of federal authority. In contrast, the dormant commerce clause decisions reveal
no such consistent pattern.
Overall, an examination of individual voting patterns reveals two
primary visions held by members of the Court. The first contemplates the
maintenance of a careful balance of power between federal and state
governments, with each subscribing justice showing a marked preference
for one level of government over the other. The second vision favors a
market economy, relatively free of both federal and state restrictions, at
least in the context of environmental protection. The line of demarcation
between these two views depends, in large measure, upon whether the
justice views land and water as natural resources, or as free market commodities.
A. The TraditionalFederalism: Supporting Government Regulation of
NaturalResources
The wisdom of a messianic insistence on a grim sink-or-swim
policy of laissez-faire economics would be debatable had Congress chosen to enact it; but Congress has done nothing of the
kind. It is the Court which has imposed the policy under the
dormant Commerce Clause, a policy which bodes ill for the values of federalism which have long animated our constitutional
jurisprudence.
-Chief Justice Rehnquist (1994)376
Five members of the Court have taken a consistent view as to which
sovereign-federal or state-should regulate the use of natural resources.
Chief Justice Rehnquist has been the staunchest advocate of state environmental regulation, voting consistently to sustain state regulation and
to strike federal regulation.377 Conversely, Justices Stevens, Souter, Gins"' In terms of the Appendix, Part III relied primarily upon the holdings set forth in
column two; Part IV will rely upon the data contained in columns three to eleven, focusing
upon the views of the nine justices that currently comprise the Court: Chief Justice
Rehnquist and Justices Breyer, Ginsburg, Kennedy, O'Connor, Scalia, Souter, Stevens, and
Thomas.
376
W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 217 (1994) (Rehnquist, C.J., dis-
senting) (emphasis added).
377Chief Justice Rehnquist dissented from the Court's invalidation of state regulation
in City of Philadelphia, Hughes, Sporhase, Chemical Waste Management, Fort Gratiot,
Oregon Waste Systems, and C & A Carbone. In Taylor, he also voted in favor of state
regulation, joining the majority in that case. In contrast, he voted to strike federal regulation in Lopez, Morrison, and SWANCC.
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burg, and Breyer have been firm supporters of federal resource protection, voting consistently to sustain federal regulation and to strike state
regulation. 378 Each of these justices has recognized land and water as important resources that merit protection in their natural state. This Section
will describe the philosophy of these five Justices as the "traditional federalism," the idea that natural resource regulation is a proper role of government, regardless of whether one would cast a federal or state actor
into that role.
Chief Justice Rehnquist has advanced a creative but lonely vision of
state environmental regulation. He has chastised the Court for refusing to
recognize a distinction between forbidden economic protectionism and
legitimate health and safety regulation. In Oregon Waste Systems, he observed:
Far from neutralizing the economic situation for Oregon producers and out-of-state producers, the Court's analysis turns the
Commerce Clause on its head. Oregon's neighbors will operate
under a competitive advantage against their Oregon counterparts
as they can now produce solid waste with reckless abandon and
avoid paying concomitant state taxes to develop new landfills
and clean up retired landfill sites.379
In his view, state legislation should be allowed to protect health, safety,
and the environment without attracting the fatal label of "protectionism."
Chief Justice Rehnquist has supported state environmental laws
based upon his perception of the environment as a resource, rather than
as a commodity. That is, he has disagreed with the Court's characterization of waste as a market commodity, beyond the scope of state regulation.380 Justice Rehnquist has explained that "[w]hile I understand that
solid waste is an article of commerce, it is not a commodity sold in the
marketplace; rather it is disposed of at a cost to the State. Petitioners do
not buy garbage to put in their landfills; solid waste producers pay peti378
Justice Stevens voted to strike state regulation in each of the environmental dormant
commerce clause cases considered in this Article: City of Philadelphia,Hughes, Sporhase,
Taylor (casting the only dissenting vote), Chemical Waste Management, Fort Gratiot, Ore-
gon Waste Systems, and C & A Carbone. Justice Ginsburg, joining the Court on August 10,
1993, voted against state regulation in the two dormant environmental commerce clause
cases in which she participated. Justice Souter, joining the Court on October 19, 1990,
would fall neatly into this camp, but for his support of one state law in his dissent in C & A
Carbone. See COHEN & VARAT, supra note 260, at 1688 (listing terms of service for each
member of the Supreme Court). Justice Breyer did not join the Court until after all of the
environmental dormant commerce clause cases discussed in this Article had been decided.
However, he participated in each of the Court's affirmative commerce clause decisions,
voting consistently in favor of federal regulation in Lopez, Morrison, and SWANCC.
379
See Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 112 (1994)
(Rehnquist, C.J., dissenting); see also supra Part III.C.3.
3
0See Or. Waste Sys., 511 U.S. at 112 (Rehnquist, C.J., dissenting).
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tioners to take their waste.""'' Instead, he believes that the garbage cases
are about natural resources rather than commodities, and he focuses upon
landfills rather than upon garbage. Similarly, he views water as a natural
resource subject to state regulation, particularly where state law "so
regulate[s] a natural resource as to preclude that resource from attaining
the status of an 'article of commerce'
for the purposes of the negative
382
impact of the Commerce Clause.
Like Chief Justice Rehnquist, the other four "traditional federalists"
believe that government protection of land and water is critically important. In contrast to the Chief Justice, however, these four justices support
federal, rather than state, environmental protection. For example, in
SWANCC, those justices began their dissenting plea for federal protection
with a stark reminder that in 1969, "the Cuyahoga River in Cleveland,
Ohio, coated with a slick of industrial waste, caught fire."3 3 Despite that
fact, those justices lamented that "the Court takes an unfortunate step
that needlessly weakens our principal safeguard against toxic water."3
Whereas Chief Justice Rehnquist emphasizes the noncommercial
nature of the land and water resources that the states seek to protect,385
the opposing four justices highlight the commercial nature of the environmental threats that the federal government seeks to control.3 6 For example, the pro-federal justices view the filling of a wetland as an activity
that "is almost always undertaken for economic reasons. ' '387 Despite their
differences, each of these justices believes that the invalidation of legislation at one level of government does not preclude the passage of similarly protective legislation by the opposing sovereign.
B. The Newest Federalism:A Return to Laissez Faire?
It is, then, not the least irony of these cases [Lopez and Morrison] that the States will be forced to enjoy the new federalism
whether they want it or not.
-Justice
Souter (2000)388
381Id.
at 112 (citing City of Philadelphia v. New Jersey, 437 U.S. 617, 621 (1978)).
Sporhase v. Nebraska, 458 U.S. 941, 953 (1982) (Rehnquist, J., dissenting).
383SWANCC, 531 U.S. 159, 174 (2001) (Stevens, J., dissenting).
3
84ld. (referring to the Clean Water Act).
312
383See, e.g., supra note 54 and accompanying text.
3'6 See SWANCC, 531 U.S. at 193-94 (Stevens, J., dissenting) (distinguishing the state
role in
land use planning from the federal role in environmental regulation).
387
Id. at 193.
381Morrison, 529 U.S. 654 (2000) (Souter, J., dissenting) (discussing Court's disapproval of federal legislation supported by the states themselves, with the result that certain
undesirable activities such as violence against women may be beyond the effective reach of
both state and federal regulation).
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The Environmental Commerce Clause
In contrast to the willingness of the five justices discussed in the
previous Section to support government protection of natural resources,
Justices Scalia, Thomas, and Kennedy-and often Justice O'Connorhave demonstrated hostility to all regulation, both federal and state, designed to protect the natural environment.389 This voting pattern may
reflect hostility toward government regulation in general or toward environmental protection in particular. Although the environmental commerce clause cases contain no overt language demonstrating environmental hostility, these four justices have consistently voted against environmental protection in non-commerce clause contexts, including decisions involving standing, Fifth Amendment takings, and the Tenth
Amendment. 319
This Section describes the view of these four justices as the "newest
federalism." This highlights an important irony: although five justices
have recently joined together in a series of cases limiting the federal
commerce power for the express purpose of preserving the rights of the
states,391 of that group only Chief Justice Rehnquist has demonstrated a
commitment to that rationale by supporting state regulatory authority
against dormant commerce clause challenges.3 92 As a result, the four
newest federalists have joined with Chief Justice Rehnquist to effectively
preclude environmental regulation at both the federal and state levels.3 93
389See Appendix. Justices Scalia, Thomas, and Kennedy voted against environmental
laws in each of the environmental commerce clause cases considered by this Article in
which they participated. Joining the Court on September 26, 1986, Justice Scalia voted
against state regulation in Chemical Waste Management, Fort Gratiot, Oregon Waste Systems, and C & A Carbone, and voted against federal regulation in Lopez, Morrison, and
SWANCC. Joining the Court on October 23, 1991, Justice Thomas voted against state
regulation in Chemical Waste Management, Fort Gratiot, Oregon Waste Systems, and C &
A Carbone, and against federal regulation in Lopez, Morrison, and SWANCC. Joining the
Court on February 18, 1988, Justice Kennedy voted against environmental laws in each of
the seven environmental commerce clauses cases in which he participated.
Justice O'Connor fits well within this group, but for her pro-state votes in Sporhase
(dissent) and Taylor. Joining the Court on September 25, 1981, Justice O'Connor voted
against state regulation in four out of the seven dormant environmental commerce clause
cases in which she participated (Chemical Waste Management, Fort Gratiot, Oregon Waste
Systems, and C & A Carbone), and against federal regulation in Lopez, Morrison, and
SWANCC. See COHEN & VARAT, supra note 260, at 1687-88 (listing terms of service for
each member of the Supreme Court).
390See supra note 18, and accompanying text.
391Justices Rehnquist, Scalia, Thomas, Kennedy, and O'Connor joined the majority
opinions in Lopez, Morrison, and SWANCC. See supra Part III.B.
392See generally supra Part III.C.
393As an additional irony, in both Morrison and SWANCC the majority invalidated federal legislation to protect the prerogatives of the states, even over the protest of the states
themselves. See Morrison, 529 U.S. at 653 (Souter, J., dissenting) (noting that "Attorneys
General from 38 States urged Congress to enact the [federal legislation invalidated by the
majority as beyond the scope of the affirmative commerce clause], representing that the
current [state law] system for dealing with violence against women is inadequate");
SWANCC, 531 U.S. 159, 192 (2001) (Stevens, J., dissenting) (noting that relevant provision of federal Clean Water Act included a scheme that "encouraged States to supplant
federal control with their own regulatory programs," and concluding that "[blecause Illi-
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Whatever their motivation, this minority of four anti-regulatory justices has been able to commandeer a majority of the Court by creating
unexpected alliances. To invalidate state natural resource laws, the
staunchly conservative newest federalists have been joined by the
staunchly liberal bloc of the traditional federalists. Conversely, to invalidate federal natural resource regulation, the free market predilection of
the newest federalist minority has been reinforced by the pro-state traditional federalism view of Chief Justice Rehnquist.
The vocabulary of the free market permeates the newest federalist
analyses. In the context of the dormant commerce clause, the newest federalists have voted to invalidate state regulation on the basis that water
and garbage are market commodities beyond the purview of state control.
With respect to garbage, for example, they view with grave concern the
possibility that "[t]he increasing number of [local] flow control regimes
virtually ensures some inconsistency between jurisdictions, with the effect of eliminating the movement of waste between jurisdictions."3 94
Similarly, their view of garbage-as-market-commodity has been expressed through their criticism of a local flow-control ordinance they
perceived as "hoard[ing] solid waste, and the demand to get rid of it, for
'
the benefit of the preferred [local] processing facility."395
In contrast, under the affirmative commerce clause these justices
have voted to invalidate federal legislation on the basis that it does not
regulate "economic" activities that substantially affect interstate commerce.3 96 Justice Thomas would go even further, allowing the federal
government to regulate only activities that are themselves of a "commer'
cial character" or related to "business."397
Accordingly, Justice Thomas
would eliminate the third category of acceptable federal authority, as recognized in Lopez: the regulation of economic activities that substantially
affect interstate commerce.3 98
Justice Souter has been a particularly passionate critic of this free
market view of the federal commerce power. In his Morrison dissent, he
criticizes the majority for categorically excluding certain commerce affecting activities from the reach of Congress simply because the regulated activity is not itself commercial or economic in nature.3 99 He reminds the Court of its "nearly disastrous experiment" with substantive
nois could have taken advantage of the opportunities offered to it through [that statute], the
federalism concerns to which the majority adverts are misplaced").
394C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 407 (1994) (O'Connor,
J., concurring).
391Id. at 392.
396See, e.g., Lopez, 514 U.S. 549, 560-61 (1995) (holding that federal guns-in-theschools legislation cannot be sustained "under our cases upholding regulations of activities
that arise out of or are connected with a commercial transaction").
197See id. at 599, 601 (Thomas, J., concurring).
398See id. at 558-59 (majority opinion describing the three categories).
399See Morrison, 529 U.S. 598, 628 (2000) (Souter, J., dissenting).
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The Environmental Commerce Clause
2003]
due process prior to 1937 and argues that "today's decision [distinguishing between commercial and noncommercial conduct] can only be seen
as a step toward recapturing the prior mistakes." 4 ° Justice Souter explains:
If we now ask why the formalistic economic/noneconomic distinction might matter today ... [t]he answer is that in the minds
of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism
had value in the service of an economic conception, the new one
is useful in serving a conception of federalism. It is the instrument by which assertions of national power are to be limited in
favor of preserving a supposedly discernible, proper sphere of
state autonomy to legislate or refrain from legislating as the individual States see fit."
Justice Souter asserts that such formalistic reliance upon whether or not
an activity is "commercial" hearkens back to the previously discarded
philosophy of "laissez-faire economics, the point of which was to keep
government interference to a minimum.""
V. CONCLUSION: EMBRACING LIMITS
Though on the surface the idea may seem counterintuitive, it
was the insight of the Framers that freedom was enhanced by
the creation of two governments, not one. "In the compound republic of America, the power surrendered by the people is first
divided between two distinct governments, and then the portion
allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people."
-Justice
Kennedy (1995) 4°
Those who love poetry and music have long recognized the powerful
force of artistic creativity expressed within the parameters of precise
Id. at 642-43.
401Id.
at 644-45.
Id. at 644 (observing that the Court in 1936 "was still trying to create a laissez-faire
world out of the 20th century economy" and dismissing such attempts in the modem world
4
as impossible).
43 Lopez, 514 U.S. 549, 576 (1995) (Kennedy, J., concurring) (holding unconstitutional federal statute, but writing separately to emphasize the limited nature of the Court's
holding and the continued need for deference to Congress) (quoting THE FEDERALIST No.
51, at 323 (James Madison) (Clinton Rossiter ed., 1961)).
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structural constraints. Thus, the haiku can be a forceful method of communication, even though its structural requirements limit the poet to three
lines of verse, a mere "breath of words."4" In the context of music, the
fugues of Johann Sebastian Bach and others are much loved, despite their
"strict discipline in conformity with the musical tradition of [a] specific
time and place."405 One modem commentator speculates that the fugue
"may well represent the human search for a degree of order and systemic
consistency in an apparently confused mesh of intertwined but separate
particular realities."4° The commentator concludes that the fugue presents "a vision, both eternal and ephemeral, of tolerant and expansive intermingling, of a human discipline that allows true human flight."4' 7
Applying this concept of freedom generated by limits to the environmental commerce clause, one might ask whether the modern Court's
vision of a free market commerce clause in fact promotes freedom in any
meaningful and socially beneficial sense. This Article suggests a negative
response to that question, at least in cases where such market freedom
comes at the expense of both state and federal efforts to protect natural
resources and perhaps also at the expense of constitutional integrity. °8 In
an era threatened by severe shortages of the most basic resources-unpolluted water and land-it is disingenuous for the Court to invoke the
rhetoric of freedom to thwart good-faith attempts of both state and federal governments to protect the natural environment.
The modern Court's shrinkage of federal and state legislative power
under the commerce clause is ironic for its purported protection of economic freedom, achieved at the expense of legislative freedom. The
commerce clause cases are part of a broader pattern under which the
Court has become increasingly distrustful of legislative enactments at
both the state and federal levels of government. In Lucas v. South Carolina Coastal Council, for example, the Court held that a state environmental statute limiting beachfront development constituted a taking of
private property without just compensation, unless it could fall within a
narrowly described nuisance exception.' In setting forth the parameters
of that safe haven for state regulation, the Court noted that regulations
prohibiting "all economically beneficial use of land ...
cannot be newly
1m See Ian Codrescu, Rules of Form and Freedom of Spirit in Haiku, Keynote Speech
at World Haiku Review Conference (Nov. 2001) (describing traditional haiku form of 5-7-5
syllables, but noting the possibility of free form haiku), http://www.worldhaikureview.
org/1-3/whcessaycodrescul.shtml (on file with the Harvard Environmental Law Review).
401Jayati Ghosh, The Art and Science of Fugue, MACROSCAN: AN ALTERNATIVE Eco-
NOMICS WEBCENTRE, available at http://www.macroscan.com/index.htm (last visited Mar.
26, 2002) (on file with the Harvard Environmental Law Review) (describing the fugue as
simultaneously cerebral and sensual).
46Id.
407 Id.
408 See supra notes 18-24 and accompanying text (noting inconsistencies between the
Court's affirmative and dormant commerce clause analyses).
4- 505 U.S. 1003 (1992).
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The Environmental Commerce Clause
legislated or decreed (without compensation), but must inhere in the title
itself, in the restrictions that background principles of the State's law of
property and nuisance already place upon land ownership."41 0 The Court
indicated that the judicial branch must have the final word in the matter,
for "law or decree with such an effect must, in other words, do no more
than duplicate the result that could have been achieved in the courts-by
adjacent landowners (or other uniquely affected persons) under the
State's law of private nuisance, or by the State under its complementary
' 411
power to abate nuisances that affect the public generally, or otherwise.
Similarly, the Court indicated its distrust of federal legislative
findings in Morrison. In that case, the Court rejected explicit congressional findings indicating that the subject of the challenged federal lawviolence against women-had a substantial effect upon interstate commerce.41 2 Although the Court couched its disapproval in terms of the legal
reasoning underlying Congress's factual conclusions, Morrison also
contains broad language questioning whether Congress can ever be the
final arbiter of cause-and-effect relationships involving commerce:
"Whether particular operations affect interstate commerce sufficiently to
come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled
finally only by this Court."4" 3
In conclusion, I would like to suggest that in appropriate cases, environmental regulation by one-or even both-sovereigns should be left
undisturbed by the courts. This is not a radical proposition. As reflected
by the quotation introducing this part, Justices Kennedy and O'Connor
have recognized that at some level, governmental limits can enhance security and freedom. Similarly, Chief Justice Rehnquist has observed that:
In adopting this [garbage disposal] legislation, the [State Legislature] ...appears to have concluded that, like the State, coun-
ties should reap as they have sown-hardly a novel proposition.
It has required counties within the State to be responsible for
the waste created within the county." 4
410
1d. at 1029.
Id.
412 Id. at 614-15 (acknowledging that the challenged statute is "supported by numerous
findings regarding the serious impact that gender-motivated violence has on victims and
their families").
413 Id. at 614 (quoting Lopez, 514 U.S. 557, n.2 (quoting Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 273 (1964))). This decreasing judicial deference toward Congress has been the subject of vigorous scholarly debate. See, e.g., Symposium-The Constitution in Exile: Is it ime to Bring it in From the Cold?, 51 DUKE L.J. (2001) (containing
articles both supporting and criticizing the Court's active judicial review of congressional
enactments).
414 Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Res., 504 U.S. 353,
370 (1992) (Rehnquist, C.J., dissenting).
411
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Furthermore, there is considerable historical evidence that the Framers
did not intend for the affirmative commerce clause to be exclusive, nor
for the Court, rather than the political process, to be the final arbiter of
the balance between federal and state power.415 Congress itself has advanced the idea of "cooperative federalism," a principle that forms the
basis of numerous environmental statutes including the Clean Air Act," 6
the Clean Water Act, 417 and the Resource Conservation and Recovery
Act.4 18 Land, water, and other natural resources are life-sustaining and
infinitely more precious than any laissez faire construction of the newest
federalists. Perhaps the greatest gift of freedom that these free market
proponents could give to the nation is the gift of judicial restraint, allowing federal and state governments to protect natural resources, free
from undue interference by the Supreme Court.
45 See, e.g., Lopez, 514 U.S. at 575-79 (Kennedy, J., concurring) (acknowledging
historical ambiguity concerning proper role of the judiciary in enforcing a balance of
power with respect to the commerce clause).
416 42 U.S.C. § 7401(a)(4) (1994) (establishing the framework for cooperative federal,
state, regional, and local programs to prevent and control air pollution).
. 41733 U.S.C. § 1251(g) (2000) (establishing scheme of federal, state, and local cooperation to develop comprehensive solutions for managing water resources).
418 42 U.S.C. § 6901(a)(4) (1994) (discussing the necessity of federal, state, regional,
and local action to reduce the amount of waste and "to provide for proper ... solid waste
disposal practices").
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The Environmental Commerce Clause
APPENDIX
THE ENVIRONMENTAL COMMERCE CLAUSE
(1978-2001)
The Dormant Commerce Clause
1978: ,' City of Philadel, .
E
437
Jersey,
v.
New
phia
U.S. 617:
! ' ! I!
!o i ! :i
Striking stateban onimportation of waste.
7,
; 1, $
Cn
WW
En
717 717
I V
Ij
1979: 1 Hughes v. Oklahoma, 441 U.S. 322:
Striking state ban on exportation of minnows to
other states.
f
,'
4
4'
,'
,1
4
1982: 1 Sporhase v. Nebraska, 458 U.S. 941:
Striking state regulation
on withdrawal of
groundwater for use in
other states.
f
,'
4'
4'
,1
W
$
4
1986: 1 Maine v. Taylor,
477 U.S. 131:
Upholding state ban on
importation of live
baitfish from other states.
1992: 41Chemical Waste
f
Management v. Hunt, 504
W
W
W
W
4-
j
C
J
f
ft
f
4
W
W
4-
-
f
f
f
$
4'
,1
W
,
U.S. 334: Striking state
fee on disposal of haz-
ardous waste from other
states.
1992: ,1 Fort Gratiot Sanitary Landfill v. Michigan,
504 U.S. 353:
Striking state restriction on
importation of waste from
outside county.
,'
,'
,
4'
4,
4
,1
W
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4,
4
4
4
HarvardEnvironmental Law Review
1994: $ Oregon Waste
Systems v. Department of
Environmental Quality,
[Vol. 27
.
Z)
*
511 U.S. 93:
Striking state surcharge on N 717 1
importation of waste from
W
other states.
1994: 1 C & A Carbone
17 ,
v. Town of Clarkstown,
W
511 U.S. 383:
Striking local ordinance
requiring deposit of all
solid waste within town at
a single town-sponsored
transfer station.
4.
o
0
Cn F- .n
Uh
717 $ 71 17 717 17
W
1
1
1 1
1
W
The Affirmative Commerce Clause
1995: , U.S. v. Lopez,
1 17
I
W C
514 U.S. 549:
Striking federal statute
prohibiting guns in school
zones.
17
C
V 1I
1
C
W
2001: 1 U.S.v. Morrison, 717 17 V I
W
W
529 U.S. 598:
Striking federal statute
providing federal civil
remedy for victims of
gender-motivated violence.
2001: , SWANCC v.
,1 17 V I
W
Enof
Corps
U.S. Army
gineers, 531 U.S. 159:
Striking federal regulation of intrastate wetlands
used by migratory birds.
V 17 V 17 71,
V 17 V ,
W
Legend:
Justice voted to uphold challenged state or federal regulation
4 Justice voted to strike challenged state or federal regulation
W = Wrote
J = Joined
C = Concurred
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,